SUREKHA DABAS Vs. UNION TERRITORY OF PONDICHERRY

JUDGEMENT

(1.) THE petitioner has come forward with this writ petition praying for a Writ of Certiorarified Mandamus calling for the records of the third respondent in No. 274/mgpgi/a3/aca/2007-08/1057 dated 21. 04. 2007 and after quashing the same direct the third respondent to indicate the name of the petitioner as the 1st in the General Category wait list and direct the removal of the name of the 4th respondent in the list and conduct the selection on that basis.

(2.) THE petitioner completed Bachelor of Dental Science in the year 2005. She appeared for Post Graduate Dental Entrance Examination (PGDEE) for the academic year 2007-2008 held on 09. 02. 2007 and secured 161 marks out of 200. THE third respondent published merit and wait list which is extracted below:- Name Category Roll No. Marks i) Dr. D. Jeyaraj General M " 301 167 ii) Dr. Payal Chatterjee General G - 101 163 iii) Dr. Vaishnavee @ Kamatchi OBC B-205 162 iv) Dr. Mahendira Kumar SC S " 401 149 Wait list Name Category Roll No. Marks i) Dr. Surekha Dabas General G - 104 161 ii) Dr. Shiamala, J OBC B " 211 156 iii) Gnanavel, D SC S " 402 135

(3.) MR. Haridas, learned Senior counsel appearing for the petitioner submitted that the seat, if any, which fell vacant in earlier counselling can only be filled in the same category in the next counselling. In this case, the fourth respondent was selected as a OBC candidate in the counselling dated 09. 04. 2007 and she had already paid her fees on 10. 04. 2007, hence, withdrawing her name from OBC category and adjusting in the vacancy of general category in the next counselling is illegal; that the general category candidate Dr. Jayaraj did not attend the counselling on 09. 04. 2007, the petitioner, who is in Sl. No. 1 of the wait list in the same category ought to have been fit in the vacancy, but without following the same, the impugned re-allocation was made, with the result, the sixth respondent is likely to be adjusted in the general category, though she belonged to reserved category, which is contrary to the reservation scheme. In support of his contention, the learned Senior counsel relied on the decision of the Honourable Supreme Court reported in (Rajiv Mittal vs. Maharashi Dayanand University and others) 1998 (2) SCC 402, wherein in Para-14, it was held thus:- "14. 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 candidate is in a position to secure, and secures admission to a seat in the general in the same counselling, in which the 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 09. 09. 2006 while the first counselling for the reserved category candidates was held on 10. 09. 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 he would 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 09. 09. 1996 then he 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. 09. 1996. As Sunil Yadav's position in the open category was at Serial No. 62 and the last candidate who had secured admission at the first counselling against the 49th seat was at Serial No. 53, therefore, having failed to secure admission on 09. 09. 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. 09. 1996. It is in that counselling that he was selected and granted admission to the Medical College at Rohtak. Once Sunil Yadav had 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 was held on 26. 09. 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 in the open category in the first counselling, for that category for that category, but had secured admission in the reserved 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. "