Deepak Gupta, C.J.@mdashThis is another litigation in the unending stream of cases which have ended up in this Court wherein the petitioners and the respondents have raised various issues relating to admission to the MBBS courses in the Agartala Government Medical College, Tripura, RIMS, Imphal and now to the five newly added seats in the following medical colleges:-
Lady Hardings Medical College, Delhi; Medical College, Thiruvananthapuram, Kerala; Assam Medical College, Dibrugarh, Assam; Chhattisgarh Institute of Medical Science, Bilashpur and A.N. Magadh Medical College, Gaya, Bihar.
2. A large number of issues raised have already been decided by us in WP(C) 283 of 2014 decided on 31-07-2014 and 13-08-2014 as well as in WP(C) 237 of 2013 and WP(C) 238 of 2013 decided on 21-08-2013.
3. The petitions relate to admissions to the Medical Colleges i.e. the Agartala Govt. Medical College, Agartala and Regional Institution of Medical Science (RIMS), Imphal, Manipur. In AGMC, there are 75 seats in the State quota. Out of these 75 seats, 44 seats are for unreserved candidates, 25 seats for Schedule Tribe candidates, 15 seats for Schedule Caste candidates, 2 for Physically Handicapped and 2 for wards of Ex-service man. In RIMS, Imphal there are 13 seats earmarked for the candidates from Tripura, out of which 6(six) are meant for unreserved category, 2(two) for Scheduled Castes, 4(four) for Schedule Tribes and 1(one) for wards of Ex-serviceman. Thus there are 88 seats which are to be filled in on the basis of a Joint Entrance Examination (PCB Group) conducted by the Tripura Board of Joint Entrance Examination (for short the Board). In the AGMC, Agartala 15(fifteen) seats are allocated for the all India quota which have to be filled in on the basis of the All India Pre Medical (AIPM) test. This year, out of 15 seats allocated to the All India Quota, 6 seats were filled in on the basis of All India Pre Medical Test and, therefore, 9 seats from the All India Quota were surrendered to be filled in by the State of Tripura. In addition thereto, 5 seats, one each in Lady Hardings Medical College, Delhi; Medical College, Thiruvananthapuram, Kerala; Assam Medical College, Dibrugarh, Assam; Chhattisgarh Institute of Medical Science, Bilashpur and A.N. Magadh Medical College, Gaya, Bihar are also to be filled up.
4. In WP(C) 283 of 2014, we had decided the issue as to how the surrendered seats had to be filled up. Vide our order dated 13-08-2014, we had clearly indicated that reservation in terms of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 shall be applied to the seats released by the Central Government in the Agartala Government Medical College. Now, when the advertisement for the 3rd round of counselling was issued against the 5 seats meant for the five Medical Colleges, the State Reservation Act was applied and consequently, 1 seat was earmarked for SC category, 2 seats for ST category and 2 were kept for unreserved category.
5. By means of WP(C) 376 of 2014, the petitioner Ms. Olivia Dasgupta has challenged the application of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 to these five seats being filled up from the central pool.
6. In WP(C) 391 of 2014 (Miss Sayantika Ghosh Vs. State of Tripura and others), the petitioner has raised another ground. According to the petitioner, the seats of those candidates belonging to the reserved category who got admission on their own merits (meritorious reserved category candidates) but have then surrendered their seats will now have to be filled in strictly in accordance with merit and cannot be filled up from the reserved category. In WP(C) 383 of 2014, petitioner Smt. Barnali Datta has also raised the same plea.
7. In WP(C) 392 of 2014, two issues have been raised by the petitioner Sri Abhijit Roy who belongs to the Scheduled Caste category. His first submission is that in the first counselling 86 seats were filled up, in the second counselling 6 seats were filled up and in the third counselling 22 seats have been filled up which means that the total number of seats is 114. In addition thereto, it is urged that the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 shall also apply to the 5 seats to be filled up in the five Medical Colleges.
8. In WP(C) 378 of 2014, Miss. Purba Bhowmik, the petitioner, has urged that she was present in the first counselling which took place on 20th-22nd June, 2014. She further states that she also was present in the second round of counselling which took place on 23-07-2014. Her case is that since the candidates above her in merit were allotted the seats, she was not required to stay on. According to her, no attendance of the candidates was marked at the time when the first or second round of counselling took place. In the alternative, it has also been urged on her behalf that the order dated 31-07-2014 is prospective in nature and it does not affect the rights of those candidates who may not have appeared in the first or second round of counselling.
9. We propose to deal with each of the issues separately. The first issue is whether the 5 seats allocated by the Central Government in the five Medical Colleges are governed by the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991. At the outset, we may point out that these seats are not in colleges administered or run by the State of Tripura or the Government of Tripura. These seats are in colleges run by other State Governments or bodies outside the State of Tripura. Since, in the State of Tripura, there are not sufficient number of Medical Colleges, some seats in these Medical Colleges outside the State of Tripura have been earmarked for the students studying in the State of Tripura. These seats are basically Central Government seats and are called as seats of the central pool.
10. No doubt, these five seats, one in each of the five Medical Colleges mentioned above, have been allocated to the State of Tripura. However, this allocation has been made by the Government of India, Ministry of Health and Family Welfare vide its communication dated 02-09-2014. In the subject of this communication, it is clearly mentioned that these are Central Pool MBBS and BDS seats. These seats have been allocated not only to the permanent residents of the State/UT concerned but also to the employees of the State and UT Government concerned and to the employees of Central/State/UT Government employees posted in the respective States. Therefore, these are not seats meant exclusively for the domiciles of Tripura. They are meant for all those who reside in Tripura including children of Central Government employees.
11. Most importantly, sub para-(iii) of para-2 of the letter reads as follows:-
"(iii) 22 1/2% of the seats allotted to each State/UT concerned will be reserved for students belonging to Scheduled Castes/Scheduled Tribes of that State/UT. The break-up of this reservation will be as follows:-
(a) A distinct reservation of 15% for Scheduled Castes and 7 1/2% for Scheduled Tribes.
(b) The reservation as mentioned in sub-para (a) above, can be interchanged. Thus, if a sufficient number of candidates are not available to fill-up seats reserved for Scheduled Tribes, they may be filled-up by suitable candidates from Scheduled Castes and vice-versa; and
(c) If the number of available scheduled caste and Scheduled Tribe qualified candidates is less than 22 1/2% of the seats; the balance can be given to non-scheduled caste and Scheduled Tribe candidates."
12. A perusal of this aforesaid portion of the letter makes it abundantly clear that the reservation as envisaged by the Central Government is 22 1/2% out of which 15% for the Scheduled Castes and 7 1/2% for the Scheduled Tribes. This reservation is interchangeable amongst the castes if suitable number of candidates from the one caste are not available. If no candidate from any of the reserved category is available, then alone will the seat go to the unreserved category. We are of the considered view that these seats being central pool seats will be governed by the terms of the letter of allocation of the seats. These seats are not seats in colleges run by the State of Tripura. No doubt, these seats are to be filled in on the basis of the merit obtained in the examination conducted by the Tripura Board of Joint Entrance Examination, but that would not in any way dilute the condition of the letter with regard to the maximum reservation applicable.
13. We may point out that while deciding WP(C) 295 of 2013, we had clubbed the seats surrendered by the Central Government and the seats in the five Medical Colleges. At that time, our attention had not been drawn to the letter of allocation and this point had not been specifically raised before us. At that time, all that was argued was that all these seats would be governed by the State Act and there was virtually no counter argument. Now, Mr. A.K. Bhowmik, learned Sr. Counsel, has drawn our attention to the letter of allocation. Therefore, we clarify that the law as of today shall be that the seats in the central pool or Central Quota will be governed by the reservation policy of the centre unless the Union of India surrenders the seats or in its letter of allocation says that they will be governed by the State Act. This year the letter of allocation clearly sets out the percentage of reservation and when the authority which is surrendering or giving up its seats lays down guidelines stipulating the conditions including the extent of reservations, then those stipulations shall govern the said seats.
14. One must remember that when the Central Government allocates seats, it has to apply reservation in accordance with the policy of the Central Government. There may be different criteria for reservation in the States and in the Centre. The seats which are central pool seats and even the seats falling to the central quota and filled in by the Central Government according to the All India Pre-Medical Test will have to be governed by the reservation policy of the Central Government. In our earlier order, we have made it clear that as far as the surrendered seats are concerned, those will be governed by the State Act because once those seats are surrendered by the Central Government, they become seats of the State Government. In the present case, the Central Government has not surrendered its seats. It has allocated the seats to different States and has then directed the States to send its nominations in accordance with the merit. There is no surrender of seats but the Central Government keeping in view the federal nature of our Constitution has left it to the wisdom of the State to determine the merit. The merit may be determined as per the examination of the State Government but the allocation and reservation will have to be as per the guidelines of the Central Government. Therefore, we have no hesitation in coming to the conclusion that in these five seats reservation will have to be only as per the guidelines laid down by the Central Government and, therefore, only one seat can be reserved which first must be offered to a Scheduled Caste candidate and if no Scheduled Caste candidate is available, then to a Scheduled Tribe candidate and only in the eventuality, if no candidate being available from any of the two categories, will it be offered to an unreserved candidate and the remaining four seats in these colleges shall be filled in strictly on the basis of merit.
15. In WP(C) 391 of 2014, it has been urged by Mr. G.S. Bhattacharjee, learned counsel, that two reserved category candidates who have got in on their own merit (meritorious reserved category candidates), later surrendered their seats and have left their seats vacant. He, therefore, submits that once now these seats are being filled up, then they cannot be given to the reserved category because the reserved category candidates had already got reservation as per the roster and merit must prevail as far as filling up these seats are concerned. We are in total agreement with this submission. We had in our first judgment dated 21-08-2013 made an allegorical reference to reserved compartment in a train and we had stated that though in the reserved compartment for women, only women can travel but that does not prevent women from travelling in any other compartment. The position of these two meritorious reserved category candidates is that they have booked seats in an unreserved compartment but they did not come to travel and, therefore, those two seats have to be given to the persons next in the waiting list whether they belong to the unreserved category, reserved category or otherwise. Therefore, those two seats will have to be filled in only in accordance with merit. The two meritorious reserved category candidates who got those two seats did not get them as reserved category candidates but on their own merits. Therefore, other than for the purpose of giving them the college of choice, they are to be treated as unreserved seats.
16. We have been informed at the Bar that the reserved category candidates who have surrendered their seats had, in fact, opted to join in RIMS, Imphal. As noted by us in our earlier judgments, RIMS, Imphal is the preferred college of choice. It would, indeed, be a travesty of justice if now the seats in RIMS are offered to candidates who only get seats in the 3rd counselling and the people who are much higher in merit and have been successful in the 1st round of counselling are not offered these seats. Mr. T.D. Majumder points out that in fact in RIMS out of the 13 seats, 12 are occupied including 6 by reserved category candidates. Therefore, one seat in RIMS shall be filled up on the basis of merit alone. Therefore, we direct that tomorrow a notice shall be put up in the Agartala Government Medical College asking for options from the students studying in the college if any of them is willing to give up his/her seat and join at RIMS in Imphal. Since there is only one seat vacant at RIMS, Imphal, the person who is senior most in merit and opts to join at Imphal will be allocated the seat at RIMS, Imphal.
17. As far as the case of WP(C) 392 of 2014 is concerned, two points have been raised before us. As far as the first point with regard to calculating the reserved category seats on the basis of the total seats reflected in the various advertisements inviting candidates for counselling are concerned, the contention is totally without merit. According to the calculation of the petitioner, there are a total number of 114 seats plus 5 in the Medical College. This contention is totally wrong. The number of seats does not change. The number of seats for the State of Tripura in Agartala Government Medical College remains 75. In RIMS, Imphal it remains 13, i.e. the 88 seats in these two colleges are to be filled in initially by the State of Tripura. The need for 2nd and 3rd counselling arises only because some of the candidates who are offered seats in the first counselling do not actually join the colleges. If every person who was offered a seat in the 1st round of counselling joined, then there would virtually be no need for a 2nd counselling. Some seats (9) have been surrendered by the Central Government. We in our earlier orders dated 31-07-2014 and 13-08-2014 have made it absolutely clear that the State Reservation Act shall apply to these surrendered seats also. As far as the prayer of the petitioner that the Central Act shall apply to the 5 seats in these five Medical Colleges are concerned, we on account of the discussion held in Miss Olivia Dasgupta''s case cannot agree with the counsel for the petitioner and, therefore, the petition is rejected.
18. That brings us to the last case of Miss Purba Bhowmik in WP(C) 378 of 2014. When this petition was taken up by us on 10-09-2014, we had passed a detailed order, relevant portion of which reads as follows:-
"We, therefore, pass the following interim order:-
(i) That, the Chairman, Tripura Board of Joint Entrance Examination and the Director, Medical Education shall verify whether the petitioner actually appeared in the 1st and 2nd round of counselling or not; and,
(ii) If according to their record, she has not appeared in either of the first two rounds of counselling, she will not be permitted to appear in the 3rd round of counselling and if she has appeared in the first two rounds of counselling, then she shall be permitted to appear in the 3rd round of counselling."
19. The petitioner sought permission to appear in the 3rd round of counselling stating therein that she had appeared in the first two rounds of counselling. This prayer was rejected on the ground that as per records available, she had been shown to be absent in the 1st round of counselling. The relevant noting made on the application of the petitioner reads as follows:-
"As per records available from Tripura Board of Joint Entrance Examination (TBJEE), Miss Purba Bhowmik has been shown absent in First round of counseling. Therefore, as per the verdict of Hon''ble High Court of Tripura, Agartala, she is not permitted to attend this round of counselling.
Sd/-(Illegible)
Dt. 10.9.14."
20. It is urged by Mr. Sankar Deb, learned Sr. Counsel appearing for the petitioner, that the petitioner actually appeared in the first two rounds of counselling. According to him, in the 1st round of counselling only candidates up to Sl. No. 58 on merit were offered a seat and since the petitioner was only interested in an MBBS seat, there was no need for her to stay any longer. It is submitted that the petitioner also appeared in the 2nd round of counselling which took place on 27-07-2014 and, therefore, she has wrongly been shown to be absent in the first two rounds of counselling. It has also been urged that for the first time in the order dated 31-07-2014 passed by this Court, this Court held that those who are not present in the first two rounds of counselling would not be eligible to appear in the next rounds of counselling. It has also been urged by Mr. Deb that from a perusal of para-13 of the judgment in question, it can easily be inferred that these directions were meant to be for the future. In support of his submission, Sri Sankar Deb has also placed reliance on a letter written by Mr. S.K. Das, Additional Director S.C. Welfare Department to the Chairman, Medical Counselling Board, Directorate of Medical Education with copy to the Under Secretary, Government of Tripura, Health and Family Welfare Department and Copy to the Director, S. C Welfare Department, Government of Tripura wherein Sri S.K. Das, the Additional Director has stated that there are irregularities being committed by the Board while in the process of counselling of seats in Medical and Para Medical courses. The letter reads as follows:-
"To
The Chariman,
Medical Counseling board,
Director of Medical Education,
Govt. of Tripura.
Subject :-Irregularities in the Counseling on 10-09-2014.
Sir,
With reference to Memorandum No. F.11(1)-ET/DME/2014-15 dated, 09-09-2014 issued by the Under Secretary, Health & Family Welfare Deptt. & authorized by the Director, SC Welfare Deptt. I have attended the Counseling on 10-09-2014 in the Auditorium of Agartala Govt. Medical College & taken part in the process of counselling of seats in Medical & Para-Medical Courses. I find that the Board is not adhering to the decision of the Hon''ble High Court of Tripura. On the other hand, there are gross irregularities in the Counseling in terms of number of seats for MBBS & maintenance of the attendance of the candidates etc.
2. Being a responsible Government officer I can''t support the above irregularities of the Board and hence I am leaving the Counseling with my protest against the irregularities and with request to regularize the irregularities before taking any decision for distribution of seats.
Yours faithfully,
(S K Das)
Addl. Director, SC welfare Deptt."
21. Relying upon this letter, it is urged that there was no proper record for maintenance of attendance of the candidates. He has also placed reliance on another letter written by Smt. Meeta Das, Additional Director, Directorate of Welfare of Scheduled Castes, Tripura to one Sri Anjan Das, relevant portion of which reads as follows:-
"To
Sri Anjan Das,
Vill-Birbal Das Para,
P.O.-Amarpur, Gomati District.
Subject :-Quary on Joint Entrance 1st Counseling at 20th July, 2014.
Sir,
In response to your letter No. Nil dated, 15/09/2014 in the Department of Sch. Caste Welfare, Tripura I am directed to reply that in Joint Entrance 1st counselling for filing up of Medical Seats commenced on 20th July, 2014 where no registration of candidates made mandatory as appeared during counselling.
This is for your kind information and doing the needful.
Yours faithfully,
(Meeta Das)
Addl. Director,
Directorate for Welfare of
Sch. Castes, Tripuras."
22. On the other hand, Mr. S.M. Chakraborty, learned Sr. Counsel for the Tripura Board of Joint Entrance Examination, has placed before us a compilation containing the names of as many as 3831 persons as per their merit in the PCB Group. This document is a list of all candidates of PCB Group in order of merit and in the remarks column there are certain words. Either the college allotted to the candidate has been mentioned. In some cases the word "denied" has been written which obviously mean that the candidate did not opt and in certain cases the word "absent" is written. There are many absentees even amongst the candidates prior to Sl. No. 66 at which place the name of the petitioner finds mention. To give an example, at Sl. No. 63 the name of one Sri Rahul Das is mentioned who is stated to be absent. At Sl. No. 65 the name of one Yashaswee Tarafdar is mentioned and it is noted "denied" against her name. Against the name of petitioner Purba Bhowmik, the word "absent" has been recorded. The word "denied" as we have been made to understand means refusal on the part of the candidate to accept the seat offered to her. The next four candidates have also refused to accept the seats and thereafter candidate at Sl. No. 71 is also shown to be absent. The candidate at Sl. No. 73 has joined BDS in RIMS. Therefore, there is a system of counselling which continues for a long time because not only seats in the MBBS courses but also seats in the BDS and other courses are filled in on the basis of the counselling. A candidate may refuse to join the BDS seat because he or she does not want to do the course of BDS. But his/her presence is recorded if that candidate is there. In the case of candidates who are not present, they have been marked as absent. We find that even after the petitioner against the names of many candidates the words denied have been written which means that they denied to accept a seat in the BDS course.
23. We cannot accept the plea of the petitioner that she was present in the first round of counselling. If she had been present and had refused to accept a course then the word "denied" would have been written as against the other candidates. The record which has been produced before us by the Tripura Board of Joint Entrance Examination is record maintained in official capacity. Each and every page of this compilation has been signed by the Secretary of the Board and, therefore, we have no reason to disbelieve the same. Therefore, we cannot accept the plea of the petitioner that she was present in the first round of counselling.
24. Next comes the argument of Mr. Deb that the Order dated 31st July, 2014 is prospective in nature and does not affect the persons who may or may not have attended the first two rounds of counselling. We are not at all in agreement with this submission. Mr. Deb has only made reference to para 13 of the order dated 31st July, 2014 wherein we have made reference to the guidelines to be framed in the future. The case of the petitioner is answered in para-8 of that order wherein we have clearly stated that since this practice of denial and surrendering seats in the first round of counselling has been going on for long, we permit it to go on for this year. However, we had made it clear that this benefit would only be given to those candidates who had appeared in the first round of counselling and had consciously surrendered their seats knowing fully well that they will be entitled to appear in the second round of counselling like any of the others. We had also made it clear that this benefit would not be available to those candidates who had not appeared in the first round of counselling. Therefore, what we have laid down is the law. It would, indeed, be an astonishing proposition where a candidate who does not appear in the first round of counselling is permitted to come in subsequent rounds of counselling. Either the candidate must apply for leave as we have indicated in our order or gives up his or her seat. Therefore, we are unable to accept the contention of Mr. Deb and the petition is accordingly rejected.
25. Mr. Deb has urged that in the first round of counselling no wait list was prepared. Mr. Deb has also urged that in the advertisement for the first round of counselling it was stated that no wait list will be prepared and, therefore, the petitioner may not have stayed on for counselling because of the available seats being filled up on merit. This argument also cannot be accepted because from the record it is apparent that some sort of attendance was being marked and the petitioner whose father belongs to the medical fraternity should have taken care to have got her presence marked at the time when the process of counselling was going on.
26. It has been contended by Sri Deb that candidate at Sl. No. 154, Sri Anjan Das was absent. We find from the record of the Tripura Board of Joint Entrance Examination that this averment is correct. Therefore, no seat can be offered to Sri Anjan Das or any other candidate who is absent as per this record.
27. We have already made reference to the fact that Sri Deb has drawn our attention to the two letters quoted above. It is, indeed, surprising how the petitioner has managed to get hold of the letter dated 10th September, 2014 sent by Additional Director, S.C. Welfare Department to the Chairman of the Medical Counselling Board with copy to the Under Secretary, Govt. of Tripura. This document may not be confidential but it is a correspondence between officials. It may be obtained under the Right to Information Act but such information cannot be handed out without any application by any authority to anybody outside the Government. On our query, we were informed that this letter has been handed over to the petitioner by one Mr. Bimal Das, General Secretary of the Scheduled Castes Officers Welfare Society. This letter could have been leaked either by Mr. S.K. Das and from the photocopy which has been placed on record it was probably the copy which was marked to the Under Secretary, Government of Tripura, Health and Family Welfare Department. He could be the other person who may have leaked the letter. Be that as it may, we are shocked in the matter in which such letters, especially in matters relating to pending Court cases are being leaked and handed over to petitioners by Government servants. We leave it to the wisdom of the State of Tripura to decide whether it wants to initiate any action in this regard.
28. We are also surprised to note that one Ms. Meeta Das, Additional Director, Directorate for Welfare of Scheduled Castes, Tripura who has no concern with the counselling has sent a letter dated 15th September, 2014 (today). The letter makes no sense. It is stated in the letter "that in the Joint Entrance 1st counselling for filling up of Medical Seats commenced on 20th July, 2014 where no registration of candidates made mandatory as appeared during counseling". Not only does the letter make no sense but the less said about the quality of English the better. The Officer who appears to be an Additional Director does not even know the spelling of Directorate or the spelling of the State of Tripura to which she allegedly belongs. Therefore, we are not even sure whether this letter has actually emanated from that office or not. She also has no concern with the issue as to whether attendance is being marked in the counselling or not. How and in what circumstances did she issue this letter? The issue raised before her has nothing to do with the issue of reservation or the welfare of Scheduled Castes. We are prima facie of the view that this letter has been written only with a view to influence the decision of this case. We need not say anything more. We again leave it to the Government to decide what further action has to be taken on this issue. Copies of the letters have been retained on record and the copies of the same shall also be handed over to the learned Advocate General.
29. In view of the fact that some further action will be required in pursuant to our directions, we permit the candidates to join the colleges i.e. Agartala Government Medical College, Tripura, RIMS, Imphal, Lady Hardings Medical College, Delhi; Medical College, Thiruvananthapuram, Kerala; Assam Medical College, Dibrugarh, Assam; Chhattisgarh Institute of Medical Science, Bilashpur and A.N. Magadh Medical College, Gaya, Bihar latest by 26th September, 2014 along with a copy of this order.
30. In view of the above discussion, all the writ petitions are disposed of. WP(C) 376 of 2014 is allowed and it is held that the 5 seats of the central pool in the five Medical Colleges, i.e. Lady Hardings Medical College, Delhi; Medical College, Thiruvananthapuram, Kerala; Assam Medical College, Dibrugarh, Assam; Chattisgarh Institute of Medical Science, Bilashpur and A.N. Magadh Medical College, Gaya, Bihar shall be governed by the reservation as provided in the allocation letter dated 02-09-2014, and not by the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991.
31. WP(C) 391 of 2014 and WP(C) 383 of 2014 are partly allowed and disposed of with the direction that the seats vacated by the meritorious reserved category candidates shall be treated to be unreserved seats and will be filled in strictly in accordance with merit.
32. We further direct that the seat(s) which may fall vacant in RIMS, Imphal shall be filled in by following the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 and if the sufficient number of reserved category candidates are already occupying the seats at RIMS, Imphal, then the seats shall be filled in strictly in accordance with merit by giving an option to the candidates studying in the Agartala Government Medical College as indicated hereinabove.
33. WP(C) 392 of 2014 is dismissed. WP(C) 378 of 2014 is dismissed.
34. No order as to costs.
