PRACHI GUPTA Vs. STATE OF M P

JUDGEMENT

(1.) BY this writ petition preferred under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for issuance of a writ of mandamus commanding the respondents not to consider the petitioner in the creamy layer but to consider her candidature for the seats reserved for Other Backward Classes and further to issue a direction to revert back 22 seats of General Category which have been transferred to the reserved category and in that event consider the candidature of the petitioner in the General Category and pass such other orders as may be deemed fit and proper in the facts and circumstances of the case.

(2.) ORDINARILY this writ petition would have been dismissed without adverting to the points urged by the learned counsel for the petitioner for the simple reason that the Annexure P 1 which has been brought on record is not the exact copy of the original as has been produced by Mr. R.S. Jha, learned Dy. A.G., but remembering the concept, justice has to be tempered with mercy, I have applied self restraint not to dismiss the case in limine. Hence, I shall proceed to deal with the case on merits.

(3.) I will be failing in my duty if do not refer in detail to the order passed by this Court on 23.2.2001. It is worth noting here, on certain occasions, the learned Panel Lawyer for the State had sought adjournment for filing of the return but the same was not filed. Taking the aforesaid aspect into consideration, a direction was issued commanding the respondent No. 2, Director of Medical Education, Bhopal, to remain personally present. He had personally appeared on 23.2.2001. Mr. Lalwani, with his usual vehmence, made a Himalayan complaint on that day that inspite of adjournments sought by the State counsel from time to time, no return had been filed. Mr. R.S. Jha, learned Dy. A.G. expressed his regret that time was sought by the learned Panel Lawyer for the State but simultaneously submitted that in a case of the present nature, no return need be filed as the facts are not in dispute. It was submitted by Mr. Jha that matter relates to interpretation of a particular rule and this being a pure question of law, filing of counter affidavit was not warranted. This Court, appreciating the stand taken by the learned Dy. A.G., observed that State need not file the return in the present case. However, it was observed that if necessary, this Court may have a look at the file. Today the file relating to submission of form of the petitioner has been produced. As has been indicated in paragraph 2 of this order, the form as produced in Annexure P 1 and the form filled up by the petitioner is dissimilar to the effect that the expression 'General' used in respect of column 5 does not find place in Annexure P 1. That apart, Mr. Jha has drawn the attention of this Court to the OMR form wherein in column 5 the petitioner has marked the category as 'General' .