@JUDGMENTTAG-ORDER
I.A. Ansari, J.@mdashWe have heard Mr. S. Talapatra, learned Senior counsel, appearing on behalf of the appellant, and Mr. B. Datta, learned
Counsel appearing on behalf of the respondent Nos. 1, 2 and 3. We have also heard Mr. P. Datta, learned Counsel, appearing on behalf of the
respondent No. 4.
2. The correct interpretation of the advertisement, dated 5.10.2009, issued by the respondent No. 3, namely, Principal, Regional Institute of
Pharmaceutical Science and Technology (in short, RIPSAT), Abhoynagar, Agartala, inviting applications, for lateral admission to the second year
(3rd semester) of B.Pharma course, for the academic year 2009-10, is the bone of contention in this appeal.
3. Before proceeding further, it may be noted that the Regional institute of Pharmaceutical Science and Technology (popularly known, and
hereinafter referred to, as ''RIPSAT'') was earlier known as Regional Pharmaceutical Institute and in short, ''RPI''. The appellant, who had stood
first in the D. Pharma examination, in the year 2006, from RIPSAT, filed a writ petition, under Article 226 of the Constitution of India, which gave
rise to W.P. (C) No. 366 of 2009, his case being, in brief, thus: By the said advertisement, applications were invited from not only those, who had
obtained diploma in Pharmacy, in the year 2008, from RIPSAT, but also from those candidates, who had obtained diploma in B. Pharma in the
years preceding 2008. In terms of the said advertisement, two seats were reserved for admission to the said course in favour of the first and
second rank holders in Diploma in Pharmacy, who had obtained diploma in the year 2008, from the RIPSAT and one was reserved for in-service
candidate. Out of the said two reserved seats, meant for the first and second rank holders, as mentioned hereinbefore, one of them, namely, the
second rank holder, did not apply for admission. The seat, which had been reserved in favour of the second rank holder, as aforementioned,
having not been filled up by the said second rank holder, the said seat ought to have been treated as de-reserved and the writ petitioner ought to
have been admitted against the said seat inasmuch as the writ petitioner was the next candidate, in order of merit, in the common select list of
candidates, including those, who had passed in the year 2008, from the RIPSAT, but the State respondent/authorities concerned illegally allotted
the said de-reserved seat in favour of the respondent No. 4, who had secured, in the B. Pharma examination, in the year 2008, lower percentage
of marks than that of the writ petitioner. Though the respondent No. 4 was third in order of merit among the examinees, who had passed in the
year 2008, yet she, being below the writ petitioner, in the general merit list, ought not to have been allotted the seat by denying rightful claim of the
writ petitioner.
4. The respondents herein resisted the writ petition by contending, inter alia, that the said two reserved seats were meant for the first and second
rank holders of the diploma course of pharmacy, who had passed, in the year 2008, from RIPSAT and, on the failure of the first and second rank
holder of the year 2008 to apply for admission, the said seats were to be given to the next candidate in order of merit from amongst those, who
had passed in the year 2008. Consequently, according to the respondents, when the second rank holder of the year 2008 did not apply for
admission against the said reserved seat, the writ petitioners could not have been considered against the said reserved seat for the simple reason
that he had passed B. Pharma examination as far as back in the year 2006 and respondent No. 4 herein, namely, Smti. Jaya Das, was 3rd rank
holder in the D. Pharma examination held in the year 2008, though marks, obtained by her in B. Pharma examination, were lesser than those of the
writ petitioner, who had passed the said examination in the year 2006.
5. By judgment and order, dated 28.1.2009, which is under appeal, a learned single Judge of this Court has taken the view that the said two seats
were, in the light of the advertisement, meant for the said two rank holders of the year 2008 and since the 2nd rank holder of the year 2008 had
not opted for admission, the next rank holder i.e. respondent No. 4 herein, who was the third rank holder of the year 2008, ought to have been
given and has been legally and rightly given admission against the said reserved seat. With the conclusion, so reached, the learned single Judge has
dismissed the writ petition. Feeling aggrieved, the writ petitioner is before this Court, now as appellant.
6. In order to set at rest the controversy, we reproduce hereinbelow the relevant portion of the advertisement, in question, which reads as under:
Applications are invited from bona fide residents of Tripura having Diploma in Pharmacy qualification/in-service candidate with Diploma in
Pharmacy passed from RPI/RIPSAT for lateral admission to the Second Year Degree in Pharmacy (3rd Semester) at the Regional Institute of
Pharmaceutical Science and Technology, Abhoynagar, Agartala for the academic year 2009-2010. The course is of four (4) years duration.
Qualifying marks for submission of application is 50% in Diploma in pharmacy and for in-service candidate having at least 5 years of service
experience as Pharmacist under Government of Tripura.
Two (2) seats are reserved for serial First and Second ranks holder in Diploma in Pharmacy passed in 2008 from RIPSAT (If they fail to apply
within stipulated time, the seats will be filled up from D. Pharma passed candidate of RIPSAT in order of merit and one (1) seat for in-service
candidate.
(Emphasis added)
7. The correct interpretation of the expression, ""Two (2) seats are reserved for serial First and Second ranks holder in Diploma in Pharmacy
passed in 2008 from RIPSAT (If they fail to apply within stipulated time, the seats will be filled up from D. Pharma passed candidate of RIPSAT
in order of merit"" is he core issue in the present appeal.
8. From a bare reading of the contents of the advertisement, which we have reproduced above, what clearly transpires is that not only the
candidates, who had passed B. Pharma examination in the year 2008, were eligible to apply for a lateral admission to the 2nd Year Degree
Course in Pharmacy (3rd Semester), but also those candidates were eligible, who had obtained diploma in B. Pharma examination in the years
preceding 2008, when the said institute was known as Regional Pharmaceutical Institute (RPI). That apart, even the in-service candidates, who
had passed B. Pharma examination before the year 2008, were eligible to apply. No wonder, therefore, that it has not been contended/in the writ
proceeding, that none other than those, who had passed D. Pharma examination, in the year 2008, were eligible to apply for admission pursuant to
the said advertisement or that none other than those, who had passed in the year 2008, had been given admission.
9. Thus, not only those, who had passed B. Pharma examination in the year 2008, but also those, who had passed the said examination before the
year 2008, were, in terms of the said advertisement, eligible to apply for admission for the academic year 2009-10.
10. In the backdrop of the above admitted position, we are, now, required to interpret as to what meaning shall be attributed to the expression
Two (2) seats are reserved for serial First and Second ranks holder in Diploma in Pharmacy passed in 2008 from RIPSAT (If they fail to apply
within stipulated time, the seats will be filled up from D. Pharma passed candidate of RIPSAT in order of merit.
11. A patient reading of the said expression shows that altogether three seats had been reserved under the advertisement. Two of these seats were
reserved for first and second rank holders, in diploma in pharmacy, who had passed out, in the year 2008, from RIPSAT. This position is not in
dispute. The third reserved seat was for in-service candidate. This position too is not in dispute.
12. Thus, the question, which arose in the writ petition, and which we are, now, required to answer in this appeal too, is this : If both or one of the
persons, who had achieved first and second rank amongst the successful examinees of the year 2008, were to choose not to apply for admission,
whether the reserved seats were to remain reserved for candidates, who had passed in the year 2008, or the said two seats or the seat, as the case
may be, were to become de-reserved and ought to have been given, in terms of the placement of the candidate(s) in the common select list, in
order of merit, irrespective of the fact as to whether he/she had passed D. Pharma examination in the year 2008 or prior thereto.
13. The fact that the writ petitioner was eligible to apply for admission to the course, in question, has never been in dispute. The dispute has
remained confined only to the question as to whether the seats, which had been kept reserved for the second rank holder of the year 2008, could
have been given to the petitioner, when the petitioner was, admittedly, higher in merit amongst all the remaining candidates including respondent
No. 4, though the respondent No. 4 had passed B. Pharma examination in the year 2008 and the petitioner-appellant had passed the said
examination in the year 2006.
14. To answer the question, posed above, it is worth pointing out that the advertisement, in question, states that if they (first and second rank
holders in diploma in pharmacy) who had passed in 2008 from RIPSAT, failed to apply within stipulated time, the seat would be filled up from D.
Pharma passed candidates of RIPSAT in order of merit. It was nowhere, stated in the bracketed portion of the advertisement, namely, ""(If they fail
to apply within stipulated time, the seats will be filled up from D. Pharma passed candidate of RIPSAT in order of merit"") that if both or one of the
two rank holders of 2008 did not apply for admission, the seat(s) would still be given, in order of merit, to those, who had passed in the year
2008, no matter as to what his or her merit position in the common selection list of the candidates would be. It is not in dispute that the seat, in
question, would have been given to the petitioner but for the said reservation. He has been denied admission only on the ground that the said
reserved scat is meant for the candidate, who had passed in the year 2008 and was next in merit. This proposition can be tested from another
angle. If none of the candidates of 2008 were to apply, whether the said reserved seat would have been kept vacant. The answer to this question
has to be in the negative. Logically, therefore, on the second rank holder of the year not applied, the said seat could not have remained reserved
for those candidates, who had passed in the year 2008.
15. It needs to be noted that on the application having been made for admission, a duty was cast on the respondent No. 3, namely, principal,
Regional Institute of Pharmaceutical Science and Technology (RIPSAT), Abhoynagar, Agartala, to prepare a select list and, in this list two seats
were to be reserved for the first and second rank holder as aforesaid and the third seat was to be reserved for the in-service candidate. Thus, the
expression, ''in order of merit'', would, in the absence of anything showing to be contradictory, mean, in order of merit, in the common list, which
was to be prepared on the basis of the applications received from all the eligible candidates excluding the first and the second rank holder as
aforesaid and the one, who was to occupy, in order of merit, first position as in-service candidate. There were two courses of action left open for
the authorities concerned. One was to reserve the two seats for the first and second rank holders of the year 2008 making it clear that if the
reserved seats were not occupied by the rank holders, then, the seats would nevertheless be filled up from amongst those, who had passed, in the
year 2008, in order of merit. It was equally possible for the respondents/authorities concerned to make it clear, in the advertisement, in question,
that if the said two reserved seats, meant for the first and second rank holders of the year 2008, were to remain vacant due to the fact that the said
rank holders had not applied for admission, then, the seats would be filled up by the candidates, in general, in order of merit.
16. Hence, when it has not been specifically stated, in the said advertisement, that the said reserved seats, meant for the first and second rank
holders of the year 2008, would remain reserved for only those, who had passed in the year 2008, it was not possible for the
respondent/authorities concerned to insist that they would fill up the said vacant reserved seat by a candidate, who had passed B. Pharma
examination in the year 2008. Reservation is an exception and has to be, therefore, narrowly construed. Consequently, the interpretation of the
advertisement, in question, as far as the reservation of the seats is concerned, shall have to he narrowly, and not widely, construed. Once, when
one of the reserved seats became de-reserved as was the case at hand, it cold have been filled up, in order of merit, from amongst all the eligible
candidates, who had applied for admission. When the appellant was placed higher than the respondent No. 4 in the common select list, in order of
merit, he was the one, who ought to have been given admission against the seat, which had fallen vacant due to the fact that the person, for whom
the said seat had been kept reserved, did not apply. The respondents/authorities concerned, however, denied admission to the with petitioner-
appellant and filled up the said vacant seat by respondent No. 4; whereas the advertisement had made no such stipulation.
17. Because of what discussed and pointed out above, we are firmly of the view that admission of the respondent No. 4 to the seat, which was
kept reserved, for the second rank holder of the year 2008, was illegal and arbitrary and ought to have been interfered with in the writ petition.
18. Considering however, the fact that the ''third semester'' would be over soon, we find ourselves constrained from interfering with the selection
and admission of respondent No. 4. The right to pursue the course, in question, is a valuable right and when it has been illegally and arbitrarily
denied to the appellant, we are of the view that the wrong, which has been done to the appellant, needs to be remedied by invoking this Court''s
jurisdiction under Article 226 of the Constitution of India, which enables the Court to mould relief as may be suitable in a given case.
19. Situation thus, we are of the view that the interest of justice would be served better if the State respondents/authorities concerned are directed
to keep one seat reserved for the next lateral admission to the second year Degree in Pharmacy (3rd Semester) at the RIPSAT.
20. In the result and for the reasons discussed above, while we restrain ourselves from interfering with the admission of respondent No. 4, namely,
Smti. Jaya Das, we hereby direct the State respondents/authorities concerned to keep a seat reserved for lateral admission to the 2nd year
Degree, in Pharmacy (3rd Semester) at RIPSAT, for the academic year 2010-11 for being filled up by the appellant and this fact shall be indicated
in the advertisement, which may be published by the State respondents/authorities concerned, at the time of inviting applications for the academic
session 2010-11. If appellant does not apply for admission, the seat, to be so ordered, shall be treated as having become de-reserved and may be
filled by the candidate from amongst the candidates, who may figure, in order of merit, in the common merit list and this fact too shall be indicated
in the advertisement to be published as directed.
21. With the above observations and directions, this writ appeal shall stand disposed of.
22. No order as to costs.