Allowed

Dr. Abhishek Vyas Son of Dr. B.L. Vyas v. State of Rajasthan

Rajasthan HC2 Apr 2019CW/5995/2019

Case brief

AI extract

What is this about?

The High Court held that a government notification introducing 5% reservation for More Backward Classes issued after the last date of application could not apply retrospectively to the ongoing NEET PG counseling process. The Court directed the State to follow the reservation policy in force on the last date of application.

What did the court decide?

Respondents restrained from applying the 5% More Backward Classes reservation; admission to be made based on the reservation policy existing on the last date of application.

Dr. Abhishek Vyas Son of Dr. B.L. Vyas Vs State… — Education and Admissions | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 5995/2019

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Dr. Abhishek Vyas Son Of Dr. B.L. Vyas, Aged About 27 Years, Resident Of Inside Usta Bari, Near Daftari School, Bikaner.

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----Petitioner

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Versus

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State Of Rajasthan, Through Its Chief Secretary, Government Of Rajasthan, Secretariat, Jaipur.

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The Principal Secretary, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur.

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The Chairman, NEET PG Medical & Dental Admission/Counseling Board And Principal & Controller SMS Medical College & Attached Hospitals Jaipur, SMS Medical College, Jaipur.

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----Respondents

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For Petitioner(s)	: Mr. Rajendra Prasad, Senior Advocate assisted by Mr. Sahir Hussain, Adv. Mr. Kushagra Sharma, Adv. Ms. Purvi Mathur, Adv.
For Respondent(s)	: Mr. M.S. Singhvi Advocate General with Mr. Raunak Singhvi, Adv. Mr. R.N. Mathur Senior Advocate with Mr. Shovit Jhajharia, Adv.

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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02/04/2019

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A copy of the writ petition was made available to the Advocate General who have filed their reply in the Registry. At the request of the learned counsel for the parties requirement of notice to MCI is dispensed with.

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With the consent of learned counsel for the parties the matter is being heard finally at this stage taking into consideration the nature of the case.

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(2 of 11)

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[CW-5995/2019]

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Learned Senior Counsel appearing for the petitioner submits that the notification issued for providing 5% reservation to More Backward Classes for admission into Educational Institutions and Posts in the State has been brought in force w.e.f. 13.02.2019 and the said notification would not apply to the selection process which has already been initiated under the National Eligibility cum Entrance Test 2019. The selection was conducted for PG Selections PAN India on 06.01.2019. Learned Senior Counsel submits that as per the Information Bulletin the last date for submitting the application was 22.11.2018. The Instruction Booklet provided for counselling to be conducted for State seats as per the reservation policy and guidelines applicable in the State for the State Quota seats. It is his submission that as per the existing reservation policy on the date when the selection process was started since notification dated 13.02.2019 was not in force therefore the 5% reservation provided for More Backward Classes was not available in the State of Rajasthan. It is his submission therefore that the counseling has to be conducted in terms of the then existing reservation policy and the notification cannot have a retrospective effect. Learned counsel submits that seats for PG for State of Rajasthan are already determined on the day when the examination is conducted and the counseling is merely a process of allotment of seats in the various medical colleges thus the reservation of seats for admission is to be understood on the day when the advertisement or the Instruction Booklet was issued for examination. Learned counsel submits that the game rules cannot be changed during the game. Learned counsel has relied on law as laid down by the Supreme Court in the case of M. Surendra Reddy Versus State of Andhra Pradesh & Ors. (2015) 8 SCC

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(3 of 11)

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[CW-5995/2019]

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410 and Dr. Himanshu Shekhar Sahoo and Others Versus State of Odhisha & Ors. 2013(2)ILRCUT355 as well as AIR 1990 SC 1233 N.T. Bevin Katti, etc. V. Karnataka Public Service Commission and Others, in support of his aforesaid submissions.

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Per contra, learned Advocate General submits that notification dated 13.02.2019 has not been challenged by the petitioners, it provides for 5% reservation for More Backward Classes and the said reservation has to be applied while making admissions. In terms of the Instruction Booklet, the reservation is applicable on the date of counseling and not on the date of issuance of Information Booklet/Bulletin. As the counseling is to take place now, i.e. after the notification has been issued on 13.02.2019, it is his submission that the same will have an application as it is not a case where the rules of the game have changed in between. He further submits that the reservation policy as is applicable on the day reservation is enforced.

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Learned Advocate General has also relied on judgment in the case of Manish Kumar Nagda & Ors. Versus State of Rajasthan & Ors. passed by Coordinate Bench in S.B.C.W.P. No.8529/2018 wherein the Coordinate Bench extended the benefit of TSP reservation to the residents of the TSP Area and allowed the petitioners to migrate from the same posts of teachers to the TSP Area. Learned Advocate General also relied on Lalit Kumar Versus The University Grants Commission New Delhi & Ors. (SBCWP No.7545/2017) wherein the Coordinate Bench has allowed the amendment made by the UGC in Regulation 3.4.1 extending the scope of relaxation of 5% to OBC Creamy Layer on the recruitment process granting the 5% relaxation for

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(4 of 11)

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[CW-5995/2019]

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assessment of good academic record. Thus, he submits that in on going process the beneficial legislation ought to be given to the candidates.

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I have heard the learned counsels for the parties.

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In M. Surendra Reddy Versus State of Andhra Pradesh & Ors. (supra) the Apex Court was examined selections which were being conducted for recruitment on various posts in the State Government. The GOM dated 07.03.2002 was issued during the selection process. The Supreme Court has held that the same is a procedure law regarding reservation in the matter of selection to Posts and the same cannot be given a retrospective effect and any order amending a procedure law regarding reservation in the matter of selection to posts cannot be given a retrospective effect once the process of selection has already started.

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“26. In absence of any express or necessarily implied provision in the statute, normally statute affects the rights prospectively. A statutory provision is held to be retrospective either when it is so declared by express terms, or the intention to make retrospective clearly follows from the relevant words and the context in which they occur.”

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In the case of Dr. Himanshu Shekhar Sahoo and Others Versus State of Odhisha & Ors. (supra) while relying on 2005 (4) SCC 154 Secretary A.P. Public Service Commission Versus B. Swapna and Others and law laid down in K. Manjusree Versus State of Andhra Pradesh And Another, 2008 (3) SCC 512 , the Odhisha High Court has held that during the selection process amendment made would not apply:-

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(5 of 11)

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[CW-5995/2019]

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“15. Since applications had been called for by the NBE between 4th October 2012 to 12th November, 2012 i.e. before midnight of 12th November 2012, the law prevailing at the time of submission of application would alone be relevant and no subsequent law or policy. Although it is contended by the State that the State was contemplating amendment to the eligibility criteria of "in-service candidates" from five years to three years in the counter affidavit in Paragraph-21, the stand of the State is unambiguous and clear. We can do no better than to extract Paragraph-20 of the counter affidavit of the State which is as follows:

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"20. That, the State Government had not issued any guideline for allotment of candidates for Post Graduate (Medical) courses in the Govt. Medical Colleges of Odisha as the NEET (Post Graduate) for MD/MS/Post Graduate Diploma Courses 2013 admission sessions which was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court order dated 13.12.2012 in which the Hon'ble Supreme Court had given liberty to hold the examination and directed not to declare the results. The State Government though had taken a policy decision to hold to the counseling only was able to issue the Guideline on 27.05.2013 after the order dated 13.05.2013 was passed wherein the Hon'ble Supreme Court had lifted the bar imposed on 13.12.2012 and allowed the results already conducted to be declared to enable the students to take advantage of the same for the current year. But the decision was taken by the Government, regarding the guidelines for admission counseling for admission to the P.G. course, 2013. The DMET, Odisha had moved the file for approval of the guidelines for admission to P.G. courses on 11.04.2012 which was finally decided on 29.04.2013 by the Government regarding the conditions/eligibility etc. for admission to the course, where in it was decided that 3 years continuous service will be taken for consideration instead of five years for inservice doctors and the said decision of the Government was communicated along with the guideline to

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(6 of 11)

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[CW-5995/2019]

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the DMET, Odisha on 27.05.2013 in continuation to the earlier letter of the Government which was issued to DMET by the Government. xx xx"

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In this respect, it is important to refer to the judgment of this Court in the case of Bishnu Charan Mohanty V. State of Orissa and Others, AIR 1973 ORISSA 199, where this High Court after referring to various leading judgments of the Hon'ble Apex Court dealt with the scope of Article 166(3) of the Constitution of India and concluded that while Article 166(3) of the Constitution lays down that "until such an order reaches the person concerned, it does not attain any finality. It is open to Government even to recall a letter sent to another office before it reaches the person concerned. When, however, the order is communicated to the person concerned, the order becomes final."

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Therefore, the decision of the State Government though signed by the Hon'ble Minister on 29.4.2013, was approved by the Hon'ble Chief Minister on 21.5.2013 and communicated to the person concerned i.e. DMET, Odisha on 27.5.2013 and, therefore, the date 27.5.2013 has to be held the date on which the order was given effect to. Much prior thereto applications had been called for, examination had been held and results had also been declared. The law that was applicable to the State of Odisha, on the date of applications were made prior to midnight of 12.12.2012 and such law and/or policy prevailing at that time alone will govern the matter of admission for PG (Degree) Course for the year 2013.

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We are further of the considered view that even though the impugned guideline have been issued by the State prior to the counseling for the year 2013, yet, the selection process having already commenced on the date of application i.e. 12.11.2012, the law/policy/guideline as it prevailed on the last date of application would govern the case at hand.

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Taking into consideration of the judgments of the Hon'ble Supreme Court in the case of

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(7 of 11)

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[CW-5995/2019]

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Secretary, A.P.Public Service Commission (supra), K.Manjusree (supra) and Mohd. Raisul Islam and others (supra), it is well settled principle of law that once the process of selection has started, the prescribed selection criteria cannot be changed and further that, introducing of any change into eligibility criteria after the selection process has commenced, would amount to changing the game after the game has been played. It is also further well settled that in the present case, the selection process commenced from 12th November, 2012 (i.e. the last date of making online application) and therefore, any requirement/selection has to be made on the basis of the process/ policy/law existing on the said date. We are of the further considered view that while the State is at liberty to change its policy and we are not required to comment upon the justifiability and reasonability of such a change of policy. We are of the view that the impugned guidelines/policy would operate only prospectively i.e. from 27.5.2013 for future examinations that may be conducted but insofar as admission of P.G.(Medical) Course for "in- service candidates are concerned for the year 2013, Clause-F-2 of the impugned guidelines cannot be made to apply to such admissions into the seats reserved for "inservice candidates" for the year 2013-14.”

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In N.T. Bevin Katti, etc. V. Karnataka Public Service Commission and Others (supra) the Apex Court has held as under:-

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“11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection

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(8 of 11)

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[CW-5995/2019]

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shall be made in accordance with the existing Rules or Government Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selections in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystalises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication, if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the Rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant Rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right for selection, but if he is eligible and is

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(9 of 11)

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[CW-5995/2019]

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otherwise qualified in accordance with the relevant Rules and the terms contained in the advertisement, he does acquire a vested right for being considered for selection in accordance with the Rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of Rules during the pendency of selection unless the amended Rules are retrospective in nature.”

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Having noted the aforesaid law, this Court finds that the present case is a case relating to admissions to Educational Institutions and is not a case relating to recruitment however one thing is similar that the selection process is required for recruitment as well as for admission similarly and conditions and rules for both are laid down in the advertisement. There is already a determination of seats for admission to PG Course, 50% of the seats available in the State of Rajasthan would have to be handed over to the Central Government and the remaining 50% of the seats would be filled by the State. Counseling for the Central process is done as provided under the Information Booklet by the Central Agency while the State seats are to be filled by counseling to be done at the State level. Reservation accordingly has to be also applied.

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Question as to what reservation is to be applied in State of Rajasthan for admission to PG Courses is the only aspect which needs to be addressed too. Admittedly the last date of application was 22.11.2018 and on that date the reservation policy as existing in the State of Rajasthan did not provide for additional 5% reservation for More Backward Classes. The seats which were determined for admission in the colleges for State of Rajasthan

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(10 of 11)

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[CW-5995/2019]

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had to be bifurcated according to the reservation policy as existing on the last date of application. In my considered view therefore, the new reservation policy as substituted vide notification dated 13.02.2019 providing for 5% More Backward Classes could not be applied retrospectively on the selection process which had already commenced in November 2018 in terms of the NEET notification issued by the National Board of Examination. The reservation policy as existing on the last date of application in the State of Rajasthan would therefore remain in force for the selection and the State Government and its authorities are bound to make admissions accordingly.

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The aspect relating to Manish Kumar Nagda as pointed out by learned Advocate General was distinguishable in the said case. The TSP area notification issued under the constitutional scheme provided the candidates of the said area to be given additional benefit and for the said purpose a corrigendum was issued by the RPSC on 04.06.2018 extending the last date of application. In the case of Lalit Kumar the UGC Regulations already provided relaxation of 5% marks under the Regulations of 2010 at UG Level by clarification the same was also made applicable at PG Level but the advertisement dated 12.01.2015 did not provide regulations of 5% in good academic record at the graduate level taking into consideration the provisions of 2010 regulations to be mandatory the Coordinate Bench directed that the same would be applicable to the State of Rajasthan and on the advertisement itself in both the cases whether the amendment has been introduced during the selection process and hence both the judgments are not applicable in the present case.

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(11 of 11)

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[CW-5995/2019]

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My view is further fortified in view of the law as laid down in the judgments as cited above by counsel for the petitioner. 14. Therefore the respondents are restrained from providing reservation in terms of notification dated 13.02.2019 on the on going counseling admission process NEET PG Examination 2019 and the reservation policy as existing on the last date of application shall be followed for admission.

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Accordingly, the writ petition is allowed.

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(SANJEEV PRAKASH SHARMA),J

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R.Vaishnav

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Dr. Abhishek Vyas Son of Dr. B.L. Vyas v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Dr. Abhishek Vyas Son of Dr. B.L. Vyas v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

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