@JUDGMENTTAG-ORDER
Dipak Misra, J.@mdashBy 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 has been transferred to the reserved category and in that event consider the candidature of the petitioner in the General Category and pass such order/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 tampered 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. Now to the facts. The petitioner belongs to the category of other Backward Classes. She appeared in the examination called Pre Medical Test Examination-2000. While filing her form she opted to be considered in the General Category. She not only tick marked the "G" but also wrote in her hand ''General''. In the said form at the bottom she mentioned "belong to O.B.C. but due to creamy layer appearing in test as General Candidate". As averred in the writ petition she secured 912 marks but was called for counselling in the waiting list but eventually could not get admission in the General Category as the last candidate who secured admission secured 913 marks. The grievance of the petitioner is that as she belongs to O.B.C. she should have been categorised in the O.B.C. category and should have been admitted to the medical course.
4. 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 vehemence made a Himaliyan complaint on that day that in spite 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 dis-similar 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''. In course of hearing of this petition Mr. Lalwani, learned counsel for the petitioner has referred to Annexure P-17 which has been filed to the rejoinder affidavit whereby the Joint Controller of Professional Examination Board has written as under:
5. Immense emphasis has been made by the learned counsel for the petitioner that the Professional Examination Board is the final adjudicator and, therefore, the respondent No. 2 should have accepted the recommendation in entirety and should have admitted the petitioner in the category of O.B.C. The learned counsel has also urged that the petitioner had not given option to be considered in General Category in absolute terms but there was a qualifier and a rider as the note at the bottom would unequivocally gives an indication to that effect.
Per contra, it is submitted by Mr. Jha that if Annexure P-1 and Annexure P-2 are appreciated in proper perspective it would be crystal clear that the petitioner had given her option for General Category.
6. Mr. Lalwani, has referred me to various rules which I think are totally irrelevant for the purpose of adjudication of this case. The learned counsel has contended that the Professional Examination Board is the sole judge and if any dispute arises the Professional Examination Board can finalise. On a perusal of the rules in entirety I do not perceive any such rule which confers such authority on the Professional Examination Board. In fact the authority conferred on the Board is confined to conducting of the examination and not anything beyond that. The core question that falls for consideration is whether a person who has opted to be considered in General Category can file application afterwards to be adjusted in other category. In this connection it is apposite to refer to Rule 2.5.1 which reads as under :
"2.5.1 An entrance test P.M.T.-2000, shall be conducted by Professional Examination Board, M.P. (Vyapam) Bhopal for selection of candidates other than the All India candidates and Government of India nominees. The Vyapam will prepare merit lists, course-wise and category-wise, on the basis of the PMT-2000. Those candidates belonging to reserved categories who, on the basis of their merit, find place in the merit list of General Category will be counted against General Category only and not against their respective reserved category. Such candidates shall be shown in the lists of General Category as well as their respective reserved category. This will not be applicable to classes of horizontal reservation in various categories."
7. This Court had the occasion to interpret the rule in the case of Subrat Singh v. Director, Medical Education and others (W.P. No. 5724 of 2000) wherein it has been held as under :
"The Rules in vogue are to be interpreted on the anvil of the aforesaid decision of the Division Bench. As I have stated earlier both the rules are to be considered harmoniously. If they are read in harmony the only logical conclusion would be that if a candidate who belongs to a class but has expressed his desire not to be included in the class he would be treated in his category but if he has given an option to be treated in a particular class his case has to be considered in that class and he cannot advance a claim to be treated as a candidate in the General Category. This view of mine is in consonance with the judgment rendered in the case of Ku. Priya Gupta (Supra) and hence, the submission of Mr. Singh that the petitioner is entitled to the benefit to be treated in the General Category because of the note appended to Rule 2.3.1 is unacceptable."
In view of the aforesaid enunciation of law the adjustment or change as sought by the petitioner is not permissible.
7. That apart it is also apposite to refer to Rule 1.5.4 which reads as under:
On a perusal of the aforesaid it is also graphically clear that once a form is, filled up in OMR no change is permissible.
8. If the controversy is appreciated from both angles their remains no scintilla of doubt that the petitioner could not have opted for O.B.C. category, after having given option for the General Category. The question of qualifier or rider does not arise. The petitioner by his own action has sealed her fate. He or she who seals his/her own fate even the prowess divinity may not be able to assist the person concerned. Hence, I express my disinclination to interfere.
9. It is contended by Mr. Lalwani that 22 seats have been diverted to O.B.C. category and if those seats would have been kept in the General Category the petitioner would have obtained a chance to be adjusted in the General Category. It is not that for the first time this issue has been raised before this Court. This Court had the occasion to advert to the same in W.P. No. 6993/2000. In the said case while giving the stamp of approval to the action of the State Government this Court referred to Rule 2.5.1 of the rules and held as under:
"On a bare reading of the aforesaid rule it becomes graphically clear that the candidates belonging to reserved categories who on their basis of merit find place in the General Category will be counted against General Category only and not against their respective reserved category. As has been put forth in the return the 22 students were meritorious, their cases were considered and they were adjusted in the General Category. Once they come into the General Category the likes of the petitioner have to yield space to them and they cannot agitate a grievance that they have been deprived of admission because of this intrusion for the simple reason that it is in consonance with the mandate of Rule."
In view of the aforesaid the contention raised by Mr. Lalwani is sans substance and is hereby repelled.
10. In view of the aforesaid analysis, I do not find any merit in the contentions raised by the learned counsel for the petitioner and accordingly the writ petition stands dismissed without any order as to costs.
