# Anju Nagar v. Chairman Counseling Board and others

- **Citation:** (2005) 2 ILRA 398
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-06-13
- **Case number:** Civil Misc. Writ Petition No. 29555 of 2004
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anju-nagar-v-chairman-counseling-board-and-others-40462
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226-
Admission
in
M.B.B.S.-Petitioner
belonging to Physically handicapped lady
in Backward category- appeared and
qualified in C.P.M.T. examination 2004under open category such physically
handicapped
candidates
given
admission-the claim of petitioner denied
as the P.H. Quota under Backward
category
already
occupied
by
the
candidates possessing higher rank than
the petitioner- whether a candidate of
reserve category can be adjusted in open
category in accordance with merit ?
held-'yes'
fault
lies
with
the
Respondents who adopted illegal and
unsustainable
approach-
Necessary
direction issued to give admission in any
one of the state medical colleges by
forthwith.

Held- Para 17, 18 and 20

In such circumstances, this Court has no
hesitation to hold that the condition
mentioned in the brochure has been
misread by the respondents and the
right of the petitioner to be admitted in
the open category seats, reserved for
physically handicapped candidates, has
been illegally denied.

The purpose of reservation in favour of
scheduled caste/scheduled tribe and
other
backward
classes
category
students cannot be used as to toll to oust
the claim of candidates of physically
handicapped category who complete
with the open category belonging to said
category and have secured more merit
that the candidates, who have been
offered admission in the open category.

The fault for her being not admitted lies
with the respondents, who had adopted
an illegal and unsustainable approach to
the, matter and since the said academic
year has already commenced, it would
be fair to direct that the petitioner
should
be
given
admission
in
the
M.B.B.S. Course in any of the State
Medical colleges in the current academic
session.
Case law discussed:
2002 (7) SCC- 258
1992 supp. (3) SCC-217
2004 (23) AIC 96 SC

## Text

398 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
confirms the said order also cannot
survive
and
both
the
orders
are
consequently quashed. It is, however,
open
to
the
respondents
to
hold
disciplinary enquiry against the petitioner
in accordance with law.

8. The writ petition is disposed of
accordingly.
Petition Disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.6.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 29555 of 2004

Anju Nagar

...Petitioner
Versus
Chairman Counseling Board- C.P.M.T.-
2004 Mahanideshak Chikitsa Shiksha
Evam Prashikshan, U.P., Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri Mool Behari Saxena
Sri P.N. Tripathi

Counsel for the Respondents:
Sri Mahendra Pratap
Sri Anurag Khanna
Sri R.P. Tiwari

Constitution
of
India,
Article
226-
Admission
in
M.B.B.S.-Petitioner
belonging to Physically handicapped lady
in Backward category- appeared and
qualified in C.P.M.T. examination 2004under open category such physically
handicapped
candidates
given
admission-the claim of petitioner denied
as the P.H. Quota under Backward
category
already
occupied
by
the
candidates possessing higher rank than
the petitioner- whether a candidate of
reserve category can be adjusted in open
category in accordance with merit ?
held-'yes'
fault
lies
with
the
Respondents who adopted illegal and
unsustainable
approach-
Necessary
direction issued to give admission in any
one of the state medical colleges by
forthwith.

Held- Para 17, 18 and 20

In such circumstances, this Court has no
hesitation to hold that the condition
mentioned in the brochure has been
misread by the respondents and the
right of the petitioner to be admitted in
the open category seats, reserved for
physically handicapped candidates, has
been illegally denied.

The purpose of reservation in favour of
scheduled caste/scheduled tribe and
other
backward
classes
category
students cannot be used as to toll to oust
the claim of candidates of physically
handicapped category who complete
with the open category belonging to said
category and have secured more merit
that the candidates, who have been
offered admission in the open category.

The fault for her being not admitted lies
with the respondents, who had adopted
an illegal and unsustainable approach to
the, matter and since the said academic
year has already commenced, it would
be fair to direct that the petitioner
should
be
given
admission
in
the
M.B.B.S. Course in any of the State
Medical colleges in the current academic
session.
Case law discussed:
2002 (7) SCC- 258
1992 supp. (3) SCC-217
2004 (23) AIC 96 SC

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri P.N. Tripathi on behalf
of the petitioner, Sri Mahendra Pratap on
behalf of respondent no. 1, Sri Anurag
Khanna on behalf of respondent no. 2, Sri
2 All] Anju Nagar V. Chairman Counseling Board and others

 399
Indra Raj Singh on behalf of respondent
no. 3 and Sri R.P. Tiwari on behalf of
respondent no. 4.

2. Petitioner Anju Nagar had
appeared as a candidate in the U.P.
Combined Pre Medical Test held in the
year, 2004 with Roll No. 1601597. The
Petitioner is physically handicapped and a
member of other backward classes.
According to petitioner 27% of the seats
are reserved for other backward classes,
while a reservation of 3% has been
provided
for physically handicapped
category.

3. The result of the said entrance
examination was decided in the month of
June, 2004. The petitioner secured 1544
over all rank in other backward classes
category and 25 rank in physically
handicapped category.

4. According to schedule published
by the respondents, she reported for
counseling on 16th July, 2004 before the
Counseling Board. On 16th July, 2004 she
was informed by the Counseling Board
that no seat under the category of
physically handicapped female candidate
belonging to other Backward classes is
available as all such reserved M.B.B.S.
seats have already been fulfilled by the
candidates of same category with higher
merit.

5. According to petitioner the
respondents
granted
admission
to
physically
handicapped
category
candidates under the General category
with lower in over all merit than the
petitioner
and
therefore
she
has
approached this Court by means of the
present writ petition.

6. A counter affidavit has been filed
by
the
Chairman,
Counseling
Board/Director General, Medical Health
and Training U.P. Lucknow and the fact
as stated by the petitioner in his writ
petition, so far as the merit secured by her
in entrance examination are concerned,
has not been disputed. The relevant
paragraph nos. 4,5,6 and 7 of the counter
affidavit read as follows:

'4. That in pith and substance the
petitioner
wants
her
admission
in
M.B.B.S./B.D.S course in pursuance of
the result of C.P.M.T.-2004.

5.
That the total seats for M.B.B.S.
course are 629. As per reservation policy
the vertical reservation is as follows:-

(i) 50%= General Category
(ii) 27%
=
Other
backward
class
category
(iii) 21%= scheduled caste category
(iv) 2% = scheduled Tribes category

There is also horizontal reservation,
which are given as follows:

(i) 3%= Physically handicapped
(ii) 2%
=
Dependent
of
Freedom
Fighters
(iii) 2% = dependent of War victims
(iv) 20% = Female candidates

It has also been made clear that
horizontal
reservation
could
be
compartmentalized. The petitioner has
filed relevant extract of Brochure.

6.
That out of 629 seats for M.B.B.S.
course, 169 seats are reserved for other
backward class category. 3% seats for
handicapped, from 169 seats, come as 5
seats. Following are candidates and their
400 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
rank, who have been admitted for
M.B.B.S. course:-

(i) Rajesh Kr. Singh
= P.H. Rank-3
(ii) Ranjeet Singh
= P.H. Rank-5
(iii) Hari Kishan Yadav = P.H. Rank-8
(iv) Rajan

= P.H. Rank-10
(v) Deepak Kr. Jaiswal = P.H. Rank- 13

That rank of petitioner Anju Nagar is
P.H. Rank- 25. In this way the petitioner
has not been admitted for M.B.B.S.
course
and
she
appeared
in
the
counseling, but has not opted the seat,
which were available for P.H. Rank-25.

7.
That for general category, out of 314,
3% come as 10 seats. The name and rank
of the candidate who have been admitted
for MB.BS. course are as follows:-

(1) Shekhar Puri
= P.H. Rank-2
(2) Javed Akhtar
= P.H. Rank- 5
(3) Suresh Narain Singh = P.H. Rank-7
(4) Mohd. Jafar

= P.H. Rank-9
(5) Vivek Maheshwari = P.H. Rank-11
(6) Hari Om Nigam
= P.H. Rank-15
(7) Ruchi Gupta
=P.H. Rank-17
(8) Reena Singh

=P.H. Rank -21
(9) S.K. Tiwari

=P.H. Rank- 26
(10) Pradeep Kharya
=P.H. Rank-27

In this way Pradeep Kharya P.H.
Rank-27 has been admitted for M.B.B.S.
course.

7. From the facts, which have been
stated in the counter affidavit, it is
apparently clear that the candidates
belonging to physically handicapped
category of General category namely Sri
S.K. Tiwari and Pradeep Kharia, who
were lower in merit than petitioner in
physically handicapped category having
secured rank 26 and 27 in the said
category (physically handicapped), have
been granted admission in the M.B.B.S.
course.

8. The explanation furnished for
grant of admission to the members of the
General category lower in merit than the
petitioner
in
physically
handicapped
category has been stated to be based on
the fact that the petitioner being a member
of other backward classes category was
entitled to be considered within 3% quota
of physically handicapped in the said
reserved category alone, namely that the
petitioner was entitled to be considered
against the 3% seats reserved for
physically handicapped within 27% quota
of other backward classes category ( i.e. 5
seats of OBC Category).

9. The said stand has been taken on
the basis of compartmentalization of
horizontal and vertical reservation in
respect of the members of the othe3r
backward classes category and in light of
the conditions mentioned in the brochure
for the C.P.M.T. Entrance Examination2004, copy whereof has been enclosed as
annexure -4 to the counter affidavit filed
by Sri Pradeep Kharya, which reads as
follows :

^^---------mi;qZDr gkWfjtksUVy vkj{k.k ds vk/khu
vkus okys vH;fFkZ;ksa ls ;g Hkh visf{kr gS fd os viuh
vkjf{kr Js.kh ls lEcfU/kr izek.k&i= ds lkFk&lkFk ;fn vU;
fiNMs oxZ] vuqlwfpr tkfr vFkok vuqlwfpr tutkfr ds gSa
rks blls lEcfU/kr fooj.k iqfLrdk esa fu/kkZfjr izek.k i= Hkh
vo'; HkjsaA mi;qZDr gkWfjtksUVy vkj{k.k 1⁄4lEcfU/kr
dEikVZesUVykbTM1⁄2 gksxkA mi;qZDr izR;sd Js.kh esa eSfjV ds
vk/kkj ij p;fur vH;fFkZ;ksa dks vuqlwfpr tkfr@vuqlwfpr
tu tkfr@vU; fiNMs oxZ@lkekU; Jsf.k;ksa esa ls ml Js.kh esa
j[kk tk;sxk ftlls og lEcfU/kr gSA mnkgj.kkFkZ ;fn
Lora=rk laxzke lsukuh ds vkfJrksa dk iznRr vkj{k.k ds
varxZr p;fur dksbZ vH;FkhZ vuqlwfpr tkfr dk gS] rks mls
vuqlwfpr tkfr ds fy, vkjf{kr lhVksa esa lek;ksftr fd;k
tk;sxkA blh izdkj ;fn fodykax vH;fFkZ;ksa dks iznRr vkj{k.k
2 All] Anju Nagar V. Chairman Counseling Board and others

 401
ds vUrxZr p;fur dksbZ vH;FkhZ vU; fiNMs oxZ ;k lkekU;
Js.kh ds fy, vkjf{kr lhVksa esa lek;ksftr fd;k tk;sxkA
fodykax vH;fFkZ;ksa dh fodykaxrk bl lhek rd u gksxh fd
fpfdRlk fpfdRlk esa ck/kd gksA**

10. In view of the aforesaid, it is
contended on behalf of the respondent
that since compartment providing for
reservation of physically handicapped
category within the other backward
classes, persons higher in merit than the
petitioner
have
been
admitted
and
thereafter no seat is left within the said
compartment for admission being granted
to the petitioner in the M.B.B.S. Course.
It is submitted that the petitioner cannot
be considered in respect of the seats
within
the
quota
of
physically
handicapped which may be available in
general category, although persons lower
in merit than the petitioner in the
physically
handicapped
category
belonging to General category may have
been admitted in the said quota.

11. In the short, the controversy
between the parties is as to whether the
candidate belonging to other backward
classes category, who claims reservation
of physically handicapped category is
entitled to be admitted in accordance with
her over all merit against the seats which
are available in the General category for
physically handicapped or not.

12. On behalf of the respondent Sri
Indra Raj Singh has contended that even
if the petitioner had any right to be
considered for admission against the
M.B.B.S. course, this Court may not pass
an order directing the respondents to grant
admission to petitioner at such a belated
stage in view of the circular of the
Medical council of India, which is
statutory in nature, dated 15.9.2004,
which in turn is based upon the directions
issued by the Hon'ble Supreme Court in
the case of Medical council of India Vs.
Madhu Singh 2002(7) SCC 258.

13. Sri R.P. Tiwari submits that
respondent no. 4 has already been
admitted to the M.B.B.S. Course and has
completed nearly 8 months of teaching in
the said course and, therefore, this Court
may not pass orders affecting the
academic career of the respondent nos. 3
and 4 inasmuch as no fault can be
attributed to the said respondents in
respect of the admission granted in their
favour.

I have heard counsel for the parties
and have gone through the records of this
petition.

14. Petitioner is a member of other
backward classes belonging to physically
handicapped category. She has secured
25th
position
in
the
physically
handicapped category pursuant to the
entrance
examination.
The
ranking
secured by the petitioner and Respondent
nos. 3 and 4, who have been admitted in
M.B.B.S. Course, is as follows:

Name

All over ranking

rank in P.H. Category
1. Anju Nagar (petitioner) 1544
25
2. Satya Kant Tiwari 3941
26
3. Pradeep Kharia 3980

27

15. It is not in dispute that the
persons, who have secured lower overall
ranking than the petitioner in physically
handicapped category, namely Satyakant
Tiwari and Pradeep Kharia have been
granted admission in the M.B.B.S. course
under
the
physically
handicapped
category than the aforesaid two persons,
402 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
has been denied admission against the
open category seats on the ground that the
petitioner being a member of backward
classes in entitled to be admitted in the
compartment worked out after vertical
and horizontal reservation belonging to
O.B.C. category only. It is submitted that
the persons higher in the merit than the
petitioner have been adjusted in the said
compartment. The petitioner has no right
to be admitted against the general
category seats reserved for physically
handicapped. The aforesaid contention of
the respondents has been supported on the
strength of the conditions as mentioned in
the brochure published for the C.P.M.T.
Examination-2004, referred to above.

16. In the opinion of the Court, the
aforesaid stand taken by the respondents
is patently illegal and based on the
complete misreading of the conditions of
the brochure. It may be pointed out that
the compartmentalization is provided for
only in respect of backward classes
category seats, Scheduled caste category
seats and scheduled Tribe category seats
only. There can be no compartment so far
as the open category seats are concerned,
as the open category seats cannot be said
to be vertically reserved for general
category of persons to the exclusion of
other persons belonging to the reserved
category and therefore the issue of any
compartment being formed in respect of
the said open category does not arise. The
aforesaid circular has to be read in a
manner to make it in conformity with the
judgment of Hon'ble Supreme Court
reported in 1992 Supp (3) SCC 217,
Indra Sawhney and others vs. Union of
India and others, wherein it has been held
that if a reserved category candidate is
selected or admitted on the basis of
overall merit, it cannot be said that the
quota reserved for the said category has
been occupied. Meaning thereby the
candidate
belonging
to
Scheduled
caste/schedule tribes and other backward
classes continue to be a member of the
open category and if they enter into the
list of meritorious candidates on the basis
of their overall merit in the said open
category, his right for admission against
the said open category seats cannot be
denied on the ground that he is member of
schedule castes/schedule tribes or other
backward classes. As a matter of fact the
nomenclature
given
to
the
general
category is in itself incorrect, it would be
more appropriate to name the same as
open category where all category of
persons name general, reserved can
complete and are to be admitted as their
overall ranking.

17. In such circumstances, this Court
has no hesitation to hold that the
condition mentioned in the brochure has
been misread by the respondents and the
right of the petitioner to be admitted in the
open
category
seats,
reserved
for
physically handicapped candidates, has
been illegally denied.

18. The purpose of reservation in
favour of scheduled caste/scheduled tribe
and other backward classes category
students cannot be used as to toll to oust
the claim of candidates of physically
handicapped category who complete with
the open category belonging to said
category and have secured more merit that
the candidates, who have been offered
admission in the open category.

19.

The
contention
of
the
respondents that in view of the judgment
of the Hon'ble Supreme Court in the case
of Medical Council of India Vs. Madhu
2 All] Ravindra Nath Mishra V. D.I.O.S., Varanasi and another

 403
Singh 2002(7) SCC 258 read with the
circular of the Medical Council of India
dated 15.9.2004 the admission cannot be
granted to the petitioner after expiry of
cut of date, has to be read with the latest
judgment of the Hon'ble Supreme Court
reported in 2004(23) all India Cases 96,
Dolly Chhanda Vs. Chairman, JEE and
others, wherein in practically similar
circumstances the Hon'ble Supreme Court
in para 10 has provided as follows:

"The appellant had qualified in the
JEE-2003 but the said academic year is
already over. But for this adopted a
highly technical and rigid attitude and not
with the appellant. We are, therefore, of
the opinion that the appellant should be
given admission in MBBS course in any of
the State medical colleges in the current
academic years.

20. Applying the principle so
provided for by the Hon'ble Supreme
Court, in the facts of the case, the
petitioner had qualified JEE 2004. The
fault for her being not admitted lies with
the respondents, who had adopted an
illegal and unsustainable approach to the,
matter and since the said academic year
has already commenced, it would be fair
to direct that the petitioner should be
given admission in the M.B.B.S. Course
in any of the State Medical colleges in the
current academic session.

21. The writ petition is accordingly
allowed with costs. The respondents are
directed to give admission to the appellant
in any one of the State Medical colleges
forthwith. In case of State seats have
already been filled up, one extra seat shall
be created for her.
Petition Allowed.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.5.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 8525 of 2002

Ravindra Nath Misra

...Petitioner
Versus
District Inspector of Schools, Varanasi
and another

 ...Respondents

Counsel for the Petitioner:
Sri Shiv Kumar Pal

Counsel for the Respondents:
Sri B.P. Singh
Addl. Chief Standing Counsel

Constitution
of
India,
Article
226-
Service Law-Pension-petitioner retired
on 31.1.01-retirement benefits with held
for 4 years 3 months without any
justification-Joint Director (Pension) as
well
as
the
D.I.O.S.
found
equally
negligent-During
intervening
period
even provisional pension not given-
direction issued to release entire amount
alongwith 9% interest-the amount of
interest
to
be
recovered
from
the
personal benefit of both the guilty
officers.

Held- Para 13 and 14

In such cases where the officers of the
State Government have failed to perform
their statutory duties, the liability must
be put upon them, to compensate the
petitioner for the hardship and mental
agony suffered by him. The petitioner
has lost four years and three months of
life with dignity and has suffered severe
harassment
and
insult
from
these
officers of his own department.

The
writ
petition
is
consequently
allowed. The petitioner is made entitle
for 9 percent simple interest on the