VINODKUMAR RASIKLAL VAHONIYA Vs. UNIVERSITY OF BHAVNAGAR

JUDGEMENT

(1.) The petitioner Vinodkumar Rasiklal Vahoniya being dissatisfied by non-fructification of his desire/strong will to secure admission in Post Graduate Degree Course run by the respondent no.1 University of Bhavnagar, is before this Court with a challenge to and submission that admission to postgraduate course other than M.CH. & MD, specially, Rules 4[1], 4[2], 4[3] and 5.4[a] and 5.4[b] be declared as unconstitutional being arbitrary, as they enable Bhavnagar University to convert a reserved seat, reserved for Scheduled Tribe candidate into unreserved seat and that a writ be further issued that the petitioner is entitled to admission in postgraduate course (Medicine) and that admission of respondent no.3, namely, Dr. Ripal H. Dhariya is contrary to the provisions of Article 15[4] and the policy of the State in relation to reservation and admission to reserved candidates.

(2.) It is to be noted that respondent no.1 Bhavnagar University ["University" for short] started imparting education in Medical Courses since 1996 and was recognized as such by Medical Council of India. The University declared P.G. Medical Courses in various subjects other than M.Ch. & D.M., colleges of the above courses are affiliated with Bhavnagar University. For the present session, rules were made effective from January, 2006. The University declared detailed admission programme along with selection criteria for selection of the candidates to the P.G. Medical Courses. Copy of detailed programme along with Ordinance and detailed Rules of admission has been annexed by the petitioner at Annexure:A. The petitioner desirous of pursuing studies further made application since after his completion of M.B.B.S. in the year 2004 from B.J. Medical College, affiliated to the Gujarat University. The petitioner claims and the fact is not seriously disputed by the respondents that he belongs to Scheduled Tribe category. Case of the petitioner is that he was called for interview on 19.5.2006 in the office of the Dean of Medical College, Bhavnagar and after he was selected, he was asked to deposit a sum of Rs. 9,850/- towards fees. It is further submission of the petitioner that Bhavnagar University had prepared and declared merit list of 2006 pertaining to different categories. Apart from the first merit list, they prepared second merit list of the candidates who are coming from other universities of Gujarat and third merit list was also prepared pertaining to candidates who had passed their examinations from the universities of other States. According to the petitioner, his name was included in the second merit list, that is, a candidate who had passed from some university of Gujarat and not from the respondent University. It is an assertion of the petitioner that he was called for interview, he was given confirmation letter, but immediately after issuance of the letter, he was called back and was denied admission on the ground that he was not eligible having not passed from the respondent University.

(3.) The petitioner says and submits that the rules framed by Bhavnagar University relating to admission so far as they propose to dereserve a seat, reserved for Scheduled Tribe candidate are per se illegal, contrary to the provisions of the Constitution of India and the State policy relating to reservation. His submission is that institutional preference may not be bad, but the University is not entitled to dereserve a reserved seat on non-availability of an institutional candidate of the reserved category, but is obliged to offer the seat to a student of the same category even if he is a person who has passed from any other University of Gujarat. His submission is that 2 seats in the course of Medicine and Gynecology were reserved by the respondent University for Scheduled Tribe candidates, though the petitioner was comparatively meritorious to the institutional candidate, seat of Gynecology was offered to institutional Scheduled Tribe candidate namely, Pratixa Z. Chaudhari. His submission is that after the seat was offered to Pratixa Z. Chaudhari, other seat ought to have been offered to the petitioner as no other Scheduled Tribe candidate of the University was available, who could compete against the petitioner. Submission is that the Rule of the University, when it says that on non-availability of institutional candidate, seat would stand dereserved, it would be offered to institutional candidate and on non-availability of institutional candidate, seat is to be offered to general category student who has passed from any other University of Gujarat and thereafter, it is to be offered to the students of university of other State and if none is ready and willing to opt for the subject and the seat still remains un-filled, then, it is to be re-reserved and is to be offered to the students belonging to reserved category, leaves no chance in favour of the petitioner or any other person belonging to the reserved category, because, looking to the number of the candidates opting for P.G. Courses and less number of availability of seats, it is almost impossible or it would be a chance one in million. The submission is that the University is entitled to give preference to its candidate in comparison to an outsider if in-house/in-University candidate has secured more than cut-off marks and less than what the outsider has obtained but university cannot dereserve the seat nor such seat can be offered to general category student. Further submission in the writ application is that once a seat is reserved for a particular class/community, then, dereservation is not permissible on the ground of institutional preference, because, institutional preference is to be given to a person, who belongs to same class or category.