# Jigyasa Tiwari (Minor) v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 423
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-13
- **Case number:** Writ C No. 23323 of 2019
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jigyasa-tiwari-minor-v-state-of-u-p-ors-48540
- **Pages:** 28

## Headnote

(A) Education Law - Courts in rarest of
rare case can grant interim protection in
admission matters
- when they are
convinced that no injustice would be
meted to the other party - petitioner, who
has approached the Court for grant of
interim protection in admission matter has
an cast iron case - in the admission
matters misplaced sympathy is totally
unwarranted - Court cannot include any
qualification by a judicial fiat, as the same
is task, which is to be conducted by the
rule making authorities and not by the
courts of law - mere continuance of any
interim order does not create any right or
benefit, particularly, in the matter of
admission, wherein the issue relates to
the MBBS Course, whereat merit is of the
paramount consideration. (Para - 46,55)

(B) Education Law - Court cannot travel
beyond the jurisdiction so conferred upon
it, while granting a relief to an applicant,
merely because certain inconvenience is
sought to be meted to him/her - academic
qualifications and eligibility cannot be
always
tailored
to
suit
a
particular
candidate - mere continuance on the basis
of interim order does not create any right
in favour of the petitioner, particularly,
when admittedly she did not possess the
necessary required eligibility for being
included in the zone of consideration for
grant of horizontal reservation being 1%
of NCC Cadets (Para - 49,50)

Beseeching bizarre persecution a medical intern
- petitioned before Court - seeking judicial
avowal of the eligibility deficiency opportune to
admission in M.B.B.S. course - perpetuation of
the
same
on
makeshift
arrangement
-
Controversy relates to admission in M.B.B.S.
course - referable to National Eligibility Cum
Entrance Test (NEET) U.G. Counseling-2019 -
governed by a Government Order - setting out
conditions,
criteria
and
parameters
for
counseling/admission in M.B.B.S. and B.D.S.
courses - Horizontal Reservation - controversy
revolves around 1% reservation pertaining to
424 INDIAN LAW REPORTS ALLAHABAD SERIES
NCC ''C' Certificate with ''BEE' Grading - which
qualifies and makes the petitioner entitled for
1% reservation for NCC Cadets - petitioner
continuing to pursue her MBBS course - on the
strength of interim order - allowing her to
continue her study in MBBS course. (Para -
2,16,37 )

HELD:-(i) Petitioner not possessed with
NCC ''C' Certificate with ''BEE' Grade is
neither eligible nor has desired qualification
for being considered under 1% quota of
NCC
category
as
earmarked
in
the
Government
Order
and
the
National
Eligibility cum Entrance Test (NEET) U.G.
Counseling.

(ii) Prescription of qualification if essentially
and primarily a role reserved for the
employer and rule enacting authority and it
is not for this Court while exercising its
jurisdiction
under
Article
226
of
the
Constitution to arrogate the said function.

(iii) Mere continuance on the basis of interim
order while pursuing the MBBS Course does
not create an equity or sympathy in favour of
the petitioner

(iv) Petitioner not entitled to any relief in view
of the fact that the petitioner blew hot and
cold and approbated and reprobated at the
same time. (Para - 57)

Writ Petition dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,956 of 95,324. This is a partial read: ask again with offset=39956 for what follows._

5 All. Jigyasa Tiwari (Minor) Vs. State of U.P. & Ors.
423
registration to the petitioner keeping in
view the fact that Ordinance 9 which
though pertains to M.A English Distance
Mode, provides for a re-registration in
certain circumstances.

24. Accordingly, the present petition is
disposed of leaving it open to the petitioner to
submit a fresh representation indicating her
grievance along with certified copy of this order
to the Chancellor of the University, i.e
respondent no. 2. In case, such a representation
is made then the Chancellor of the University
shall consider the re-registration of the
petitioner and her continuance in M.A (English)
course keeping in view the observations made
above, sympathetically.

25. Let such a consideration be done
within a period of four weeks from the date of
receipt of a certified copy of this order.

26. It is also provided that as this order
has been passed in the peculiar facts of this
case as such, it shall not be treated as a
precedent.
----------
(2022)05ILR A423
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ C No. 23323 of 2019

Jigyasa Tiwari (Minor) ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amrendra Pratap Singh, Sri Swapnil
Kumar, Sri Sudhanshu Kumar, Ms. Shalu
Singh
Counsel for the Respondents:
C.S.C., Sri Mahendra Pratap

(A) Education Law - Courts in rarest of
rare case can grant interim protection in
admission matters
- when they are
convinced that no injustice would be
meted to the other party - petitioner, who
has approached the Court for grant of
interim protection in admission matter has
an cast iron case - in the admission
matters misplaced sympathy is totally
unwarranted - Court cannot include any
qualification by a judicial fiat, as the same
is task, which is to be conducted by the
rule making authorities and not by the
courts of law - mere continuance of any
interim order does not create any right or
benefit, particularly, in the matter of
admission, wherein the issue relates to
the MBBS Course, whereat merit is of the
paramount consideration. (Para - 46,55)

(B) Education Law - Court cannot travel
beyond the jurisdiction so conferred upon
it, while granting a relief to an applicant,
merely because certain inconvenience is
sought to be meted to him/her - academic
qualifications and eligibility cannot be
always
tailored
to
suit
a
particular
candidate - mere continuance on the basis
of interim order does not create any right
in favour of the petitioner, particularly,
when admittedly she did not possess the
necessary required eligibility for being
included in the zone of consideration for
grant of horizontal reservation being 1%
of NCC Cadets (Para - 49,50)

Beseeching bizarre persecution a medical intern
- petitioned before Court - seeking judicial
avowal of the eligibility deficiency opportune to
admission in M.B.B.S. course - perpetuation of
the
same
on
makeshift
arrangement
-
Controversy relates to admission in M.B.B.S.
course - referable to National Eligibility Cum
Entrance Test (NEET) U.G. Counseling-2019 -
governed by a Government Order - setting out
conditions,
criteria
and
parameters
for
counseling/admission in M.B.B.S. and B.D.S.
courses - Horizontal Reservation - controversy
revolves around 1% reservation pertaining to
424 INDIAN LAW REPORTS ALLAHABAD SERIES
NCC ''C' Certificate with ''BEE' Grading - which
qualifies and makes the petitioner entitled for
1% reservation for NCC Cadets - petitioner
continuing to pursue her MBBS course - on the
strength of interim order - allowing her to
continue her study in MBBS course. (Para -
2,16,37 )

HELD:-(i) Petitioner not possessed with
NCC ''C' Certificate with ''BEE' Grade is
neither eligible nor has desired qualification
for being considered under 1% quota of
NCC
category
as
earmarked
in
the
Government
Order
and
the
National
Eligibility cum Entrance Test (NEET) U.G.
Counseling.

(ii) Prescription of qualification if essentially
and primarily a role reserved for the
employer and rule enacting authority and it
is not for this Court while exercising its
jurisdiction
under
Article
226
of
the
Constitution to arrogate the said function.

(iii) Mere continuance on the basis of interim
order while pursuing the MBBS Course does
not create an equity or sympathy in favour of
the petitioner

(iv) Petitioner not entitled to any relief in view
of the fact that the petitioner blew hot and
cold and approbated and reprobated at the
same time. (Para - 57)

Writ Petition dismissed. (E-7)

List of Cases cited:-

1. J. Rangaswamy Vs Govt. of A.P., (1990) 1
SCC 288

2. D.P.R.M.P. Vs Director of Health, Delhi Admn.
Services & ors., (1997) 11 SCC 687

3. St. of Raj. & ors. Vs Lata Arun, (2002) 6 SCC
252

4. P.U. Joshi & ors.. Vs U.O.I. & ors., (2003) 2
SCC 632

5. Sanjay Kumar Manjul Vs Chairman, UPSC &
ors., (2006) 8 SCC 42

6. Maharashtra Public Service Commission Vs
Sandeep Shriram Warade & ors., (2019) 6 SCC
362

7. P.N.B. Vs Anit Kumar Das, 2020 SCC Online
SC 897

8. Zahoor Ahmad Rather & ors. Vs Sheikh
Imtiyaz Ahmad & ors., (2019)2 SCC 404

9. Kaloji Narayana Rao University of Health
Sciences v. Srikeerti Reddi Pingle & ors., AIR
2021 SC 1031

10. Amit Tiwari Vs St. of U.P, Special Appeal (D)
No. 122 of 2015,

11. Deepak Singh & ors. Vs St. of U.P. & ors.,
(2020) AllLJ 596

12. Anand Bihari Vs St. of U.P. , Writ-A No.
15873 of 2021

13. P.V. Joshi & ors. Vs A.G., Ahemdabad &
ors., 2003 (2) SCC 632

14. Guru Nanak Dev University Vs Parminder
Kumar Bansal, (1993) 4 SCC 401

15. St. of Bihar Vs Upendra Narayan Singh,
(2009) 5 SCC 65

16. Priya Gupta Vs St. of Chhattisgarh & ors.,
(2012) 7 SCC 433

17. Asha Vs Pt. B.D. Sharma Univ. of Health
Sciences & ors., (2012) 7 SCC 389

18. S Krishna Shradha vs St. of A.P. & ors.,
(2020) 17 SCC 465

19. A.P. Christians Medical Educational Society
Vs Govt. of A.P. & anr., (1986) 2 SCC 667

20. V.K. Sood Vs Secy., Civil Aviation & ors., AIR
1993 SC 2285

21. R.N. Gosain Vs Yashpal Dhir, (1992) 4 SCC
683

22. Shyam Telelink Ltd. Vs U.O.I., (2010) 10
SCC 165
5 All. Jigyasa Tiwari (Minor) Vs. State of U.P. & Ors.
425
23. Cauvery Coffee Traders, Mangalore Vs
Hornor Resources (International) Co. Ltd.,
(2011) 10 SCC 420

24. Sri Gangai Vinayagar Temple & anr. Vs
Meenakshi Ammal & ors., (2015) 3 SCC 624

25. Chandigarh Admin. & anr. Vs Jasmine Kaur
& ors., (2014) 10 SCC 521

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Vikas Budhwar, J.)

1. Heard Sri Swapnil Kumar and Sri
Amrendra Pratap Singh, learned counsels
for the petitioner, Sri Mahendra Pratrap,
learned counsel for the respondent no. 2 as
well as Sri Sharad Srivastava, learned
Standing Counsel.

PRELUDE

2. Beseeching bizarre persecution a
medical intern has petitioned before this
Court seeking judicial avowal of the
eligibility
deficiency
opportune
to
admission
in
M.B.B.S.
course
and
perpetuation of the same on makeshift
arrangement.

3. Factual matrix as worded in the
writ petition is that on 17.06.2019 a
Government Order bearing no. 985/71-42019-07-2018 was issued by respondent
no. 1 addressed to respondent no. 2 setting
out the criteria pertaining to admission in
M.B.B.S./B.D.S. courses for the academic
session 2019-2020.

4. Thereafter, in continuation of the
same, the respondent no. 2 issued National
Eligibility Cum Entrance Test (NEET)
U.G. Counseling-2019 (Brochure) clearly
providing the criteria for the purposes of
taking of admission referable to the
M.B.B.S. and B.D.S. courses. The relevant
extract of the conditions pertaining to
eligibility and qualifications as set out in
the Government Order and the Brochure is
being quoted hereinunder :-

"(1). Eligibility to appear in
NEET (UG)- 2019

Eligibility to appear in NEET
(UG) is as stipulated in Indian Medical
Council Act-1956 and the Dentists Act-
1948 as amended in 2018.

i. He/she has completed age of 17
years at the time to admission or will
complete the age on or before 31st
December of the year of his/her admission
to the 1st year MBBS/BDS Courses.

ii. The upper age limit for NEET
(UG) is 25 years as on the date of
examination with relaxation of 5 years for
the candidates belonging to SC/ST/OBC
category
and
persons
entitled
for
reservation under the Rights of Persons
with Disabilities Act, 2016.

The Age criteria for appearing in NEET
(UG)- 2019 is as follows:

For
Candidates
of
Unreserved
Category
(UR)
born on or between 05.05.1994
and 31.12.2002
For
Candidates
of
SC/ST/PwD Category
born on or between 05.05.1989
and 31.12.2002

Qualifications
and
Qualifying
Examination Codes

CODE : 01
A candidate who is appearing in the
qualifying examination, i.e., 12th Standard
in 2019, whose result is awaited, may apply
and take up the said test but he/she shall not
be eligible for admission to the MBBS or
BDS, if, he /she does not pass the qualifying
examination
with
the
request
pass
percentage of marks at the time of first
round or Counselling.
OR
426 INDIAN LAW REPORTS ALLAHABAD SERIES
CODE : 2
The Higher/Senior Secondary Examination
or
the
Indian
School
Certificate
Examination which is equivalent to 10+2
Higher/Senior Secondary Examination after
a period of 12 years study, the last two years
of such study comprising of Physics,
Chemistry, Biology/Bio-technology (which
shall include practical tests in these
subjects) and Mathematics or any other
elective subject with English at a level not
less that the core course for English as
prescribed by the National Council of
Education Research and Training after
introduction of the 10+2+3 educational
structure as recommended by the National
Committee on Education.

Candidates who ha passed
10+2 from Open School or as private
candidates shall not be eligible to appear
for ''National Eligibility Cum Entrance
Test'.
Furthermore,
study
of
Biology
Biotechnology as an Additional Subject at
10+2 level also shall not be permissible.

The proviso in italics has been
subject matter of challenge before the
Hon'ble High Court of Delhi, Hon'ble High
Court of Allahabad. Lucknow Bench and
Hon'ble High Court of Madhya Pradesh at
Jabalpur. The provisions of the regulations
disqualifying
recognised
Open
School
Board candidates and the candidates who
have studied Biology/Biotechnology as an
additional Subject has been struck down.

"The Medical Council of India
has preferred Special Leave Petitions before
the Hon'ble Supreme Court and Appeals in
the Hon'ble High Courts. Therefore, the
candidatures of candidates of the NEET
(UG)-2019 who have passed the qualifying
examinations i.e. 10+2 from National
Institute of Open Schooling or State Boards;
or with Biology Biotechnology as additional
subject shall be allowed but subject to the
outcome of Special Leave Petitions Appeals
filed by the Medical Council of India".
OR

CODE : 03
The Intermediate/Pre-degree Examination in
Science of an Indian University/Board of
other recognized examining body with
Physics, Chemistry, Biology/Bio-technology
(which shall include practical test in these
subjects) and also English as a compulsory
subject.
OR

CODE : 04
The
Pre-professional/Pre-medical
Examination
with
Physics,
Chemistry
Biology/Bio-technology & English after
passing
either
the
Higher
Secondary
Examination or the Pre-University or an
equivalent
examination.
The
Preprofessional/Pre-medical examination shall
include practical tests in these subjects and
also English as a compulsory subject.
OR

CODE : 05
The first year of the three years' degree
course of a recognized University with
Physics,
Chemistry
and
Biology/Biotechnology including practical tests in these
subjects provided the examination is a
University Examination and candidate has
passed the earlier qualifying examination
with Physics, Chemistry, Biology/ Biotechnology with English at a level not less
than a core course.
OR

CODE : 06
B.Sc Examination of an Indian University
provided that he/she has passed the B.Sc.
Examination with not less than two of the
subjects
Physics,
Chemistry,
Biology
(Botany,
Zoology)/Bio-technology
and
further that he/she has passed the earlier
qualifying
examination
with
Physics,
Chemistry, Biology and English.
OR

CODE : 07
Any other examination which in scope and
standard (Last 02 years of 10+2 Study
comprising of Physics, Chemistry and
Biology/Bio-technology;
which
shall
include practical test in these subjects) is
found to be equivalent to the Intermediate
Science
Examination
of
an
Indian
University/Board,
taking
Physics,
Chemistry
and
Biology/Bio-technology
including practical tests in each of these
subjects and English.

Details of Fee and various timelines

EVENTS
DATES
On-line
submission
of
Application Form (Upto
11:50 p.m.)
s(including uploading of
photograph
and
signatures)
01.11.2018 to 30.11.2018
Date of successful final
transaction of fee
01.11.2018 to 01.12.2018
Through
Credit/Debit
Card/Net-Banking
upto
11:50 p.m. and Through echallan upto bank hours
01.12.2018
5 All. Jigyasa Tiwari (Minor) Vs. State of U.P. & Ors.
427
Fee Payable by candidates Unreserved
Rs.
1400/-

Other
Backward
Classes (OBC)

SC/ST/PwD/Transg
ender
Rs. 750/-

Service/Proceedings charges
& GST are to be paid by the
candidate, as applicable
Correction in particulars
of Application Form on
website
only
(No
correction shall be allowed
under any circumstances
after this date)
14.01.2019 to 31.01.2019
Printing of Admit Cards
from NTA website
15.04.2019
Date of Examination
05.05.2019
Timing of Examination
02:00 p.m. to 05:00 p.m.
Examination Centre
As indicated on Admit Card
Display
of
recorded
responses
and
Answer
Keys
for
inviting
challenges on NTA
website:www.nta.ac.in,ww
w.ntaneet.nic.in
Date shall be displayed on
the NTA website
Declaration of Result on
NTA website
By 05.06.2019

क्षैभतज
आरक्षण
(Horizontal
Reservation)

1. स्वतन्त्रता सूंग्राम सेनाभनयोूं के आभश्रतोूं
के भलए
02 प्रभतर्त
2. ि तप वश
सैभनक
(युद्ध
मे
अपूंग/
सेवाभनवृत्त/ र्हीद) के पुत्र/पुत्री के भलए
02 प्रभतर्तS
3. बी ग्रेभडूंग सभहत "सी" सभटशभफकेट
एन.सी.सी. कैडेट
01प्रभतर्त
4. मभहला अभ्यभथशयोूं के भलए
20 प्रभतर्त
5. भदव्याूंग अभ्यभथशयोूं के भलए
05 प्रभतर्त

5. As per the pleadings set forth in the
writ petition the petitioner has come up
with case that she had passed the
Intermediate Examination in the year 2019
conducted by Board of High School and
Intermediate Education, Prayagraj and also
obtained ''B' Certificate of NCC and was
awarded
''BEE'
Grading
from
the
Commandant
Officer
of
NCC
on
18.06.2019.
Record
reveals
that
the
petitioner applied under National Eligibility
Cum
Entrance
Test
(NEET)
U.G.
Counseling-2019
Examination
on
05.04.2019 and thereafter, an admit card
was an issued in her favour allowing her to
participate in the examination so sought to
be conducted on 05.05.2019. Perusal of the
admit card which is appended at page no.
40 of the writ petition reveals that
petitioner
applied
under
unreserved
category. In paragraph no. 5 of the writ
petition, it has been averred that in the
National Eligibility Cum Entrance Test
(NEET) U.G. -2019 so conducted on
05.05.2019 the petitioner secured 548
marks out of 720 marks and has been
assigned over all rank of 24557 (unreserved
category) and the category rank whereof is
14324. The score card of the petitioner in
NEET Examinatin-2019 is at page no. 41 of
the writ petition wherein the category so
assigned to the petitioner is unreserved.
The petitioner has further averred in
paragraph no. 11 of the writ petition that
she got herself registered for counseling in
U.P. NEET (U.G.) counseling-2019 and the
verification
was
done
and
in
the
Registration Slip of counseling -2019 the
category so assigned was unreserved and in
the column pertaining to sub category
''NCC' was mentioned. At page no. 44 of
the petition the document verification card-
2019 has been appended wherein the
category assigned to the petitioner is
unreserved and SUB CATEGORY / PH
TYPE it has been mentioned as NA/NA.
The petitioner in paragraph no. 4 of the writ
petition coupled with the receipt which is at
page no. 24 of the writ petition has further
come up with stand that the petitioner got
admitted in M.B.B.S. course in the Moti
428 INDIAN LAW REPORTS ALLAHABAD SERIES
Lal Nehru Medical Collage, Prayagraj on
08.07.2019 in NCC category. However, this
Court finds that an e-mail communication
was issued from the office of the
respondent no. 2 marked to the petitioner
on 12.07.2019 requiring the petitioner to
furnish the ''BEE' Grading certificate along
with ''C' Certificate of NCC Cadet
otherwise the admission of the petitioner
will be deemed to be cancelled.

6. Being Aggrieved against the
aforesaid communication, the petitioner
thereafter, instituted the present petition
seeking following reliefs:-

"i. Issue a writ order or direction in
the nature of mandamus commanding the
respondent no. 3 not to cancel the admission
of the petitioner in MBBS Course, 2019 in
MLN Medical College, Prayagraj on the
ground that the she does not possess ''C'
certificate in NCC Examination.

i(a). To issue writ, order or
direction the nature of mandamus directing
the respondent to include NCC Cadets having
"B" certificate with "B" grade in 1 %
horizontal
reservation
as
provided
in
brochure of NEET (UG) Counseling 2019
issued by Respondent No. 2 (Annexure No. 9
to the writ petition).

ii. Issue any other writ order or
direction which this Hon'ble Court may deem
fit and proper in the circumstances of the
present case.

iii. Award costs of the writ petition
to the petitioner."

7. This Court entertained the present
writ petition and on 19.07.2019 proceeded to
pass the following order:-

"Petitioner, who is minor has
approached this Court through his father
seeking following relief :-

"(i) issue a writ order or direction
in the nature of mandamus commanding the
respondent no.3 to cancel the admission of
the petitioner in MBBS Course, 2019 in
MLN Medical College, Prayagraj on the
ground that she does not possess 'C'
certificate in NCC Examination."

Heard learned counsel for the
parties and perused the record.

Shri Amrendra Pratap Singh,
learned counsel appearing on behalf of the
petitioner submits that the petitioner has
been granted admission in MBBS course in
the Moti Lal Nehru Medical College,
Prayagraj on 8.7.2019 under the horizontal
reservation of 1% under the category of
"B" grading along with the 'C' certificate of
NCC as mentioned in the Brochure of
National Eligibility cum Entrance Test
(NEET) UG Counselling - 2019. Learned
counsel further submits that petitioner has
approached this Court earlier by way of
filing a Civil Misc. Writ Petition No.21919
of 2019, Jigyasa Tiwari (Minor) vs. State of
U.P., which was dismissed by a co-ordinate
Bench of this Court on 9.7.2019 on the
ground that writ petition was rendered
infructuous.

The petitioner is now aggrieved
by an E-mail dated 12.7.2019 whereby
Director General Medical Education and
Training, U.P. has communicated to the
College that as the petitioner has not been
able to submit 'C' certificate of NCC within
the
prescribed
period,
therefore,
the
admission shall be deemed cancelled in
case such certificate is not submitted before
19.7.2019. The said communication is
impugned in the present writ petition.

It is further submitted that the
petitioner is under graduate student and
has
passed
'B'
certificate
of
NCC
Examination - 2019 with "B" grading. He
further submits that the petitioner has
repeatedly communicated to the authorities
5 All. Jigyasa Tiwari (Minor) Vs. State of U.P. & Ors.
429
that the eligibility for appearing in "C"
certificate of NCC is graduation, and as
for,
the
petitioner
has
passed
only
Intermediate
Examination
and
got
admission in the MBBS course, she is not
eligible for the said "C" certificate of NCC.
Therefore, by way of said representation,
she has requested to reconsider the issue
and permit her to continue the studies of
MBBS course in the College.

Learned counsel has also relied
upon communication dated 9.5.2013 of the
Director General of NCC on the issue of
implementation of new TRG Syllabus and
NCC an elective subject in order to
substantiate his submission that eligibility
for 'C' certificate of NCC is graduation.

Matter requires consideration.

Let notice be issued to the
respondents.

Steps be taken within a three
days.

List this matter on 21.8.2019.

Meanwhile,
counter
and
rejoinder affidavits may be exchanged.

The
communication
dated
9.5.2013 shall be kept in abeyance till
further orders and respondents are directed
to allow the petitioner to continue her
studies in the MBBS course."

8. The respondents herein being
aggrieved
against
the
order
dated
19.07.2019 passed in the present writ
petition
preferred
SPECIAL
LEAVE
PETITION (CIVIL) Diary No(s). 39400/19
before the Hon'ble Apex Court wherein the
following order were passed:-

"Order Date : 25.11.2019

"Delay condoned.

Since the order is interim, we find
no ground to interefer with the impugnd
order passed by the High court.

However, considering the naturw
of the disputes, we request the High Court
to decide the matter at an early date, as far
as possible within six weeks.

The Special Leave Petition is,
accordingly, disposed of.

Pending
interlocutory
application(s), if any, is/are disposed of."

9. An amendment application has
been
filed
on
09.02.2020
seeking
amendment in the prayer clause which
came to be allowed on 07.04.2022 wherein
the following prayer was added:-

"To issue writ, order or direction
the nature of mandamus directing the
respondent to include NCC Cadets having
"B" certificate with "B" grade in 1 %
horizontal reservation as provided in
brochure of NEET (UG) Counseling 2019
issued by Respondent No. 2 (Annexure No.
9 to the writ petition)."

10. Counter affidavit has been filed
by the respo]
ndent no. 2 to which a rejoinder affidavit
has been filed by the petitioner. A
compilation of judgments and also of a
Government Order and Brochure has been
filed by respondent no. 2.

Argument of the Petitioner

11. Sri Swapnil Kumar assisted by Sri
Amrendra Pratap Singh, learned counsel
for the petitioner has made manifold
submissions namely:-

(a). The requirement of ''C'
certificate of NCC along with ''BEE'
Grading in order to enjoy the desired
eligibility for being considered under 1%
Horizontal Reservation and not including
430 INDIAN LAW REPORTS ALLAHABAD SERIES
the ''BEE' certificate with ''B' Grade is
illegal besides being in violation of Article
14 of the Constitution of India.

(b). The petitioner herein had
applied
in
National
Eligibility
Cum
Entrance Test (U.G.) 2019 after qualifying
Intermediate Examination and in view of
the certificate issued by Lieutenant Colonel
Officer Commanding 96 U.P. Bn CC,
Jaunpur dated 20.06.2019 addressed to
respondent no. 2 as per latest policy for
certificate exams in NCC a candidate who
is Intermediate pass can only hold a ''B'
Certificate of NCC and ''C' Certificate
exams are only awarded in the third year of
his/her training implying that cadet should
be in Degree collage.

(c). There is no logic in not
including ''B' certificate with ''BEE' Grade
of NCC while making it admissible for 1%
Horizontal reservation.

(d). Once the petitioner has not
played fraud then the respondents are
estopped from cancelling the candidature of
the petitioner as a student in M.B.B.S.
course.

(e). Even otherwise once the
petitioner has been accorded interim
protection by this Court and she is pursuing
M.B.B.S. since year 2019 then she should
be allowed to continue as a M.B.B.S.
student and awarded degree in that regard.

Argument of Respondents

12. Sri Mahendra Pratap, learned
counsel who appears for respondent no. 2
has argued that the petitioner is not entitled
for grant of any relief particularly in view
of the fact that she was thoroughly
ineligible to be granted admission as she
had played fraud as she while applying in
the National Eligibility Cum Entrance Test
had shown her category to be unreserved
and even in the admit card and score card
she was again shown to be under
unreserved category and thereafter, in the
Registration
Slip
for
counseling
the
petitioner
portrayed
herself
to
be
unreserved having sub category of NCC
and when she appeared at Nodal Centre,
Prayagraj on 26.06.2019 for document
verification
and
produced
NCC
''B'
provisional
certificate
issued
on
18.06.2019. It has further been argued by
the counsel for the respondent no. 2 that at
the time of the verification it was found
that the petitioner did not possess NCC ''C'
Certificate consequently, the petitioner had
made an application on 26.06.2019 that she
may be considered in general category
instead of sub category NCC. It has further
been argued that after submission of the
application by the petitioner for changing
her category, her category was changed,
document verification card was issued
which was signed by the petitioner in the
presence of Dr. Anoop Jaiswal, who had
verified the same and in the said
verification card category of the petitioner
was mentioned as unreserved and sub
category NA/NA (Not Available). Sri
Mahendra
Yadav
who
appears
for
respondent no. 2, has further made a
submission that due to technical fault in the
NIC the sub category of the petitioner
could not be deleted from the system and
subsequently, petitioner came for admission
on 08.07.2019 along with the Notary
Affidavit dated 06.07.2019 that 10 days
time be granted for submitting NCC ''C'
certificate and then the said discrepancy
came to the knowledge of the respondents
then on 11.07.2019 the respondent no. 3
informed the respondent no. 2 and
thereafter, a decision was taken, providing
time till 19.07.2019 for submitting NCC ''C'
Certificate with ''BEE' Grading. In nutshell,
the argument of Sri Mahendra Yadav, who
appears for respondent no. 2 is that the
5 All. Jigyasa Tiwari (Minor) Vs. State of U.P. & Ors.
431
petitioner has herself committed fraud and
concealed material facts and once she was
not possessing NCC ''C' Certificate with
''BEE' Grading then she is not entitled to be
considered under the reservation quota
pertaining to 1% for NCC Cadet. It has
further
been
emphasised
that
the
communication made by the respondent
requiring the petitioner to submit NCC ''C'
Certificate with ''BEE' Grading does not
suffer from any illegality and the petitioner
does not deserve any sympathy and the writ
petition is liable to be dismissed.

13. Sri Sharad Srivastava, learned
Standing
Counsel
who
appears
for
respondent no- 1 has adopted the argument
of learned counsel for respondent no. 2,
while adding that petitioner is not entitled
to reliefs as she is thoroughly ineligible
and mere continuance on the basis of
interim order will not create any right
upon her.

Replication on behalf of petitioner

14. Learned counsel for the petitioner
have reiterated the argument which he had
made at the first instance while arguing the
writ petition, however, the same is not
being recited as it is nothing but repetition
of the argument made at the time of arguing
of the writ petition.

Questions of Determination

(1) Whether the petitioner is
eligible and enjoys desirable qualification
for being considered under 1% quota
earmarked for NCC candidates by mode of
Horizontal Reservation?

(2) Whether the High Court in the
garb of judicial review can adorn the chair
of the rule enacting authority to decide the
educational qualifications?

(3) Whether the petitioner is
entitled to benefit of the interim order so
granted by this Court permitting her to
pursue the M.B.B.S. course till its terminal
destination?

(4) Issue with regard to the
conduct of petitioner.

SYMPOSIUM

15. We have heard the submission of
the parties and perused the record.

16.

Admittedly,
the
present
controversy
relates
to
admission
in
M.B.B.S. course referable to National
Eligibility Cum Entrance Test (NEET)
U.G. Counseling-2019 which is governed
by a Government Order dated 17.06.2019
issued by the respondent no. 1 addressed to
respondent no. 2 setting out the conditions,
criteria
and
the
parameters
for
counseling/admission in M.B.B.S. and
B.D.S. courses. It is not in dispute that not
only vertical but horizontal reservation has
been provided for admission in M.B.B.S.
and B.D.S. courses. So far as, Horizontal
Reservation is concerned, the present
controversy
revolves
around
1%
reservation
pertaining
to
NCC
''C'
Certificate with ''BEE' Grading which
qualifies and makes the petitioner entitled
for 1% reservation for NCC Cadets. Here
in the present case it is also not in dispute
that the petitioner happens to be a literate
person who as per the Intermediate
certificate so attached with the writ petition
reveals that she has sufficient knowledge of
not only Hindi vernacular but English also.

17. Apart from the same, the
examination was to be conducted on
05.05.2019 and the petitioner herein
applied on 05.04.2019 and obtained admit
card wherein the category shown was
432 INDIAN LAW REPORTS ALLAHABAD SERIES
unreserved and the said admit card not only
contained the photograph of the petitioner
but also her signature. Even in the score
card so issued after the declaration of the
result, reveals that the petitioner was shown
under the unreserved category. At the time
of the counseling, the petitioner got the
Registration Slip for counseling prepared
wherein she had shown herself to be in the
category admissible to unreserved and in
the sub category, NCC was mentioned.
Thereafter, when the petitioner appeared at
Nodal Centre, Prayagraj on 26.06.2019
then she produced NCC ''B' provisional
certificate issued on 18.06.2019 and when
the same was shown to be insufficient to
make her entitled for reservation in
question then she wrote a letter dated
26.06.2019 which is at page no. 16 of the
counter affidavit filed by the respondent no.
2 requesting that her admission may be
considered in general category instead of
sub category of NCC. In paragraph no. 11
of the counter affidavit it has been alleged
that the petitioner's category was changed,
document verification card was issued and
the petitioner signed on the said card in the
presence of Dr. Anoop Jaiswal which was
verified, however, due to technical fault in
NIC system, the sub category of the
petitioner could not be deleted from the
system and thereafter, when the petitioner
came for admission on 08.07.2019 along
with the notary certificate dated 06.07.2019
then the respondent decided to provide her
time till 19.07.2019 for submitting NCC ''C'
Certificate with ''BEE' Grading, as the
petitioner obviously did not possess the
same, thus, she filed the present petition.

18. Now, a question arises as to
whether this Court can hold on the
insistence of the petitioner that she is
eligible to be granted reservation despite
the fact that the petitioner does not have
NCC ''C' Certificate with ''BEE' Grading
but instead of the same, she is having ''B'
Certificate with ''BEE' grade.

19. The jurisdiction of the Court to
either include a qualification which already
does not finds place in the statute or to
make it equivalent by judicial fiat is a
matter which is being discussed later.
Nevertheless, the petitioner is not eligible
to be considered under NCC category
referable
to
1%
reservation
under
Horizontal stream as it is not a case
wherein the petitioner was not aware about
the desirable qualification/eligibility for
being considered under 1% reservation for
NCC Cadet and further, it is also not a case
that the petitioner was not a literate person,
however, rather to the contrary the
petitioner with her open eyes had filled up
the form and thus, any type of excuse is
thoroughly unwarranted and the same
cannot grant any aid or benefit for the
petitioner.

20. Sri Swapnil Kumar, learned
counsel for the petitioner has argued that
may be the petitioner did not possess NCC
''C'
Certificate
with
''BEE'
Grading,
however, in view of the amendments so
sought in the writ petition a mandamus can
obviously be issued to the respondents to
include the NCC Cadet having ''B'
Certificate with ''BEE' grading for 1%
Horizontal Reservation. Elaborating the
said submission, learned counsel for the
petitioner has drawn the attention of the
Court towards the communication dated
20.06.2019 issued under the signature of
Lieutenant Colonel Officer Commanding
U.P. NCC, Jaunpur to the respondent no. 2
at page no. 38 of the writ petition so as to
contend that a student who had passed
Intermediate can only get ''B' Certificate of
NCC and ''C' Certificate of NCC is
5 All. Jigyasa Tiwari (Minor) Vs. State of U.P. & Ors.
433
admissible and is only issued to a student
who is pursuing studies in Degree college.

21. We have analysed the argument of
the learned counsel for the petitioner,
however, we find our inability to subscribe
to the same for the simple reason that
prescription
of
a
qualification
it
is
essentially and primarily a role reserved for
the employer and it is not for the Court
while exercising its jurisdiction under
Article 226 of the Constitution of India to
arrogate to itself that function.

22. Additionally, we may also taken
note of the fact that the Government Order
dated 17.06.2019 as well as in the Brochure
in question the eligibility to appear in
National Eligibility Cum Entrance Test
(NEET) U.G. Counseling-2019 extends to a
larger magnitude wherein the zone of
consideration encompasses candidates who
not only appear in qualifying standard
examination i.e. 12th standard 2019 results
are awaited but also to those applicants
who have completed their graduation
courses from a Degree Collages.

23. Thus, the argument of the
petitioner is that mere possession of ''B'
Certificate of NCC Cadets is sufficient to
make her eligible for being granted
reservation under NCC quota is patently
misconceived as well as misplaced and out
of context. Moreover, once a qualification
and eligibility is prescribed then until and
unless it is said to be arbitrary of violative
of any of the provisions contained under
the Constitution of India, the same cannot
be said to be either ultra-vires or illegal and
set aside or made equivalent as sought to be
insisted by the petitioner.

24. The Hon'ble Apex Court in the
case of J. Rangaswamy vs. Government of
Andhra Pradesh reported in (1990) 1 SCC
288, has observed as under:

"6. So far as the second plea is
concerned, admittedly, the petitioner does
not have, while the respondent has, a
doctorate in nuclear physics. The plea of
the petitioner is that, for efficient discharge
of the duties of the post in question, the
diploma in radiological physics (as applied
in Medicine) from the Bhabha Atomic
Research center (BARC) held by him is
more relevant than a doctorate in nuclear
physics. It is submitted that in all
corresponding posts elsewhere, a diploma
in radiological physics is insisted upon and
that, even in the State of Andhra Pradesh,
all other physicists working in the line,
except the respondent, have the diploma of
the BARC. It is not for the Court to
consider the relevance of qualifications
prescribed for various posts. The post in
question is that of a Professor and the
prescription of a doctorate as a necessary
qualification therefor is nothing unusual.
Petitioner also stated before us that, to the
best of his knowledge, there is no doctorate
course anywhere in India in radiological
physics. That is perhaps why a doctorate in
nuclear physics has been prescribed. There
is nothing prima facie preposterous about
this requirement. It is not for us to assess
the comparative merits of such a doctorate
and the BARC diploma held by the
petitioner and decide or direct what should
be the qualifications to be prescribed for
the post in question. It will be open to the
petitioner, if so advised, to move the
college, university, Government, Indian
Medical Council or other appropriate
authorities for a review of the prescribed
qualifications and we hope that, if a
doctorate
in
nuclear
physics
is
so
absolutely irrelevant for the post in
question as is sought to be made out by the
434 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, the authorities concerned will
take expeditious steps to revise the
necessary qualifications needed for the post
appropriately. But, on the qualifications as
they stand today, the petitioner is not
eligible to the post and cannot legitimately
complain against his non-selection."

25. The Hon'ble Apex Court in the
case of Delhi Pradesh Registered Medical
Practitioners vs. Director of Health, Delhi
Admn. Services and others, reported in
(1997) 11 SCC 687, has observed as under:

"5. ... It is not necessary for this
Court
to
consider
such
submissions
because the same remains in the realm of
policy decision of other constitutional
functionaries. We may also indicate here
that what constitutes proper education and
requisite expertise for a practitioner in
Indian Medicine, must be left to the proper
authority having requisite knowledge in the
subject. As the decision of the Delhi High
Court is justified on the face of legal
position flowing from the said Central Act
of 1970, we do not think that any
interference by this Court is called for.
These appals therefore are dismissed
without any order as to costs."

26. The Hon'ble Apex Court in the
case of State of Rajasthan and others vs.
Lata Arun, reported in (2002) 6 SCC 252,
has observed as under:

"13. From the ration of the
decisions noted above it is clear that the
prescribed
eligibility
qualification
for
admission to a course or for recruitment to
or promotion in service are matters to be
considered by the appropriate authority. it
is not for courts to decide whether a
particular educational qualification should
or should not be accepted as equivalent to
the
qualification
prescribed
by
the
authority."

27. The Hon'ble Apex Court in the
case of P.U. Joshi and others vs. Union of
India and others, reported in (2003) 2
SCC 632, has observed as under:

"10. We have carefully considered
the submissions made on behalf of both
parties.
Questions
relating
to
the
constitution,
pattern,
nomenclature
of
posts,
cadres,
categories,
their
creation/abolition,
prescription
of
qualifications and other conditions of
service including avenues of promotions
and criteria to be fulfilled for such
promotions pertain to the field of Policy
and within the exclusive discretion and
jurisdiction of the State, subject, of course,
to the limitations or restrictions envisaged
in the Constitution of India and it is not for
the Statutory Tribunals, at any rate, to
direct the Government to have a particular
method of recruitment or eligibility criteria
or avenues of promotion or impose itself by
substituting its views for that of the State.
Similarly, it is well open and within the
competency of the State to change the rules
relating to a service and alter or amend
and vary by addition/ substruction the
qualifications, eligibility criteria and other
conditions of service including avenues of
promotion, from time to time, as the
administrative exigencies may need or
necessitate.
Likewise,
the
State
by
appropriate rules is entitled to amalgamate
departments or bifurcate departments into
more and constitute different categories of
posts or cadres by undertaking further
classification, bifurcation or amalgamation
as well as reconstitute and restructure the
pattern and cadres/categories of service, as
may be required from time to time by
abolishing
existing
cadres/posts
and
5 All. Jigyasa Tiwari (Minor) Vs. State of U.P. & Ors.
435
creating new cadres/posts.