JUDGMENT
S.K. Gupta, J.
1. Objections have been filed.
Petition is admitted to be heard.
2. Learned counsel for the respondents submit that objections already filed be treated as counter. On the consensus of learned Counsel appearing for the parties, the petition is taken up for final disposal.
3. Vide notification No. 25 BPEE of 2004 dated 19.5.2004 issued by respondent No. 2, inviting applications from students desirous to undergo different professional courses for appearing in entrance examination, the petitioner submitted his application form and appeared in the examination under roll number 504364. The petitioner has given his choice in his application form as (1) MBBS (2) BDS (3) Payment Seat in ASCOMS (4) B.V.Sc Vetenery and (5) BAMS Ayurveda. The merit position of the successful candidates came to be published and notified by respondent No. 2 on 26.7.2004 in Daily Excelsior. The petitioner was selected against payment seat in BAMS Course, having obtained 166 marks in entrance examination. Petitioner has challenged the selection of private respondent nos. 3 to 7 on the following grounds:
1. That the selection of respondent No. 7 to B.V.Sc Course, who was lower in merit, having obtained 165 marks and ignoring the higher merit of the petitioner, having obtained 166 marks, is illegal;
2. That respondent Nos. 3 and 4, who did not figure in the list of successful candidates, published on 26.7.2004, their subsequent admission to ASCOMS Jammu, against payment seats, has deprived the petitioner of his legitimate claim of admission to MBBS Course on account of his choice, is illegal and exhibit arbitrary act of the respondent No. 2.
3. As regards respondent Nos. 5 and 6, who came to be admitted to B.V.Sc course, having secured 166 marks, have been upgraded to MBBS Course against payment seats, vide Notification dated 16.08.2004, thereby ignoring the claim of the petitioner, who also had secured 166 marks in the entrance examination and was entitled to MBBS course against payment seat.
4. The petitioner further claims to have been discriminated, arbitrarily and in an illegal manner, in the selection to MBBS Course, as per his choice, indicated in the application form and thus seeks quashment of the selection of private respondents by issuance of writ of certiorari with a further direction to respondent No. 2 to select him to MBBS Course against payment seat in ASCOMS and such other order or direction, as the Court may deem just and proper.
4. Respondent No. 2, Board of Professional Entrance Examination, in its reply, submitted that the candidates for the purpose of selection are considered as per their preference/choice given by them in their application forms and allotted courses as per their merit in the entrance examination. The petitioner in his application form had given first choice for MBBS Free Seat, but he could not be selected for having obtained only 166 marks, as the last candidate selected to MBBS Course against free seats had obtained 181 marks. The petitioner was then considered for BDS Course against free seat category, but, he could not be selected for the said course as the cut off in BDS free seat had gone to 174 marks. Further submission of respondent No. 2 is that, petitioner even could not make his grade for his third choice for MBBS Course in ASCOMS against payment seat, as the cut off merit for the said course was 166 marks and the last two candidates, respondent Nos. 5 and 6, admitted to MBBS Course against payment seats in ASCOMS, also had equal marks but in view of Clause 3 (a) of the Information Brochure, which provides that where two or more candidates have secured equal marks, the inter-se merit of such candidates is required to be determined, in accordance with their merit obtained in (i) Biology (ii) Biology and Chemistry in aggregate and (iii) Candidates older in age to be preferred if points as per (i) and (ii) are also equal. The petitioner having obtained lesser merit than respondent Nos. 5 and 6 in Biology, could not be considered against MBBS Payment Seat in ASCOMS, as per his 3rd choice.
5. As regards the fourth choice of the petitioner for B.V.Sc free seat, the cut off marks for the said course being 170 marks and the petitioner having obtained only 166 marks, could not be considered for this course. As per the merit of the petitioner and in accordance with 5th choice of the petitioner, he was selected and allotted to undergo BAMS course. Further submission of the respondent No. 2 with regard to selection of respondent Nos. 3 and 4 against MBBS seat against payment seat category in ASCOMS, is that while filling up his application form, respondent No. 3 had applied in column 2 under Code No. Q-22 (Central Pool). Respondent No. 3 has secured 171 marks and, therefore, could not be considered for MBBS seat in central pool, as the last candidate selected for said category had secured 176 marks. He was, therefore, considered for his 2nd choice and selected and admitted to MBBS payment seat in ASCOMS, Jammu. Respondent No. 4, however, is stated to have secured 170 marks and initially was allotted B.V.Sc course, but, on account of his higher merit, he was later on selected for MBBS free seat in ASCOMS.
6. With regard to selection of respondent No. 7 for B.V.Sc payment seat, respondent No. 2 submitted that the candidates can only mention the choice for MBBS payment seats, in the column specified in the application form and the information brochure. Candidates have been asked to find out themselves if their merit in the entrance examination would entitle them to a free seat or payment seat and give their choice/preference during counseling and have made reference to Clause 4(a) of the information brochure. The petitioner having not given his preference at the time of counseling, for his consideration against B.V.Sc payment seat, now cannot agitate for the same, after having accepted the selection against the course of his choice i.e BAMS Course, that too after the selection process has concluded.
7. It was further contended that the selection has been made strictly in accordance with the merit of the candidates and per their choice/preference given in the application forms and there being no infringement of petitioner’s rights, statutory or constitutional, renders the petition liable to be dismissed.
8. Another limb of argument, advanced by Mr. D.C. Raina, learned Counsel for respondent No. 2, is that the petitioner has sought a direction to select him against the payment seat in MBBS Course in ASCOMS in the prayer part of his writ petition and, as such, no relief can be granted in respect of respondent No. 7 to the petitioner. This contention, manifestly, does not appear to be on sound basis for obvious reasons that the petitioner in prayer part of his writ petition has also sought such other order or direction as the Court may deem just and proper, which includes the quashing of selection of respondent No. 7, being lower in merit vis-a-vis the petitioner and ignoring the higher merit of the petitioner, who had obtained 166 marks in the entrance examination.
9. Mrs. Sindhu Sharma, learned Counsel appearing for the petitioner, at the threshold submitted that the respondent No. 4, Mohd Zuber Lattoo, though has been selected to MBBS Course against payment seat in ASCOMS, has not joined and in his place Tahir Ahmed Masoodi, has been selected. Her further submission is that Tahir Ahmed Masoodi was lower in merit and has been given admission to MBBS Course against payment seat in ASCOMS, ignoring the legitimate right of the petitioner, illegally, arbitrarily and without any justification.
10. On going through the record produced by respondent No. 2 in respect of private respondent Nos. 5 and 6 and also of Tahir Ahmed Masoodi, it is found that respondent Nos. 5 and 6, and Tahir Ahmed Masoodi, who is stated to have been selected for MBBS Course against payment seat in ASCOMS, in place of respondent No. 4, had all obtained 166 marks in the entrance examination. The petitioner also having secured 166 marks in entrance examination, there had been a tie-up between the petitioner, respondent Nos. 5 and 6 and Tahir Ahmed Masoodi, in that event, as per Clause 3 (a) of Information Brochure, the inter-se merit of such candidates is required to be determined as per their merit obtained by them as under:
i/ Candidates obtaining higher marks in Biology;
ii/ Candidates obtaining higher marks in Biology and Chemistry in aggregate; and
iii/ Candidates older in age to be preferred if points as per (i) and (ii) are also equal.
The break-up of marks obtained by respondent Nos. 5 and 6, Tahir Ahmed Masoodi and the petitioner is given as under:
S.No. Name Phy Che Bio Total
1. Faheem 46 53 67 166
Arshad
2. Irfan 52 48 66 166
Andleeb
Gul
3. Tahir 55 45 66 166
Ahmad
Masoodi
4. Sumeet - - 57 166
Mahajan
11. In view of the aforesaid merit, as per the marks obtained in Biology, the petitioner could not be considered and selected for MBBS Course against payment seat in ASCOMS. This clear position, emerging from record produced by respondent No. 2, in respect of aforesaid candidates and the petitioner, has not been disputed by learned Counsel for the petitioner, when confronted with record.
12. As regards the selection of respondent No. 3 to MBBS Course against payment seat in ASCOMS, after he could not make his berth in central pool, as the last candidate selected in this category had obtained 176 marks, he was considered against MBBS seat in ASCOMS, because of his higher merit. Mrs. Sindhu Sharma, learned Counsel for the petitioner, however, vehemently argued that, once the name of respondent No. 3 did not figure in the select list of 40 candidates, as per merit, he could not have been subsequently considered and selected for MBBS Course against Payment seat in ASCOMS, after his non-selection in Central Pool. On a specific quarry from the learned Counsel to show any rule pertaining to the mechanism of selection adopted by respondent No. 2 having been violated while selecting respondent No. 3, she could neither refer to any rule nor convince this Court to support her contention on proved flaw.
13. Mrs. Sindhu Sharma, has, however, confined her arguments, only with regard to selection of respondent No. 7 in B.V.Sc Course, having obtained 165 marks and ignoring the higher merit and choice of the petitioner, who had obtained 166 marks in entrance examination, which is clearly an act of hostile discrimination on the part of respondent No. 2.
14. It is not in dispute that respondent No. 7 has secured 165 marks in the entrance examination and was lower in merit vis-a-vis the petitioner who had obtained 166 marks.
15. The petitioner has also given his choice to B.V.Sc course, in order of preference, in column No. 1 of his application form. This clearly indicates that respondent No. 7 has been selected and given admission to B.V.Sc course, being lower in merit, vis-a-vis the petitioner who had secured higher merit but has been ignored by the respondent No. 2, which is clear exhibition of blatant illegal and unjustified action on the part of respondent No. 2, for the reasons best known to respondent No. 2 and not for this Court to speculate. In their reply respondent No. 2 has tried to justify the selection of respondent No. 7 to B.V.Sc Course but without any convincing, satisfactory and plausible reasons to merit acceptance with the Court which leaves sufficient room for the Court to believe volumes about the functioning of the respondent No. 2 in allocating the seats to various professional courses and plying havoc with the career of the students. It is a clear case of hostile discrimination against the petitioner in ignoring his claim for B.V.Sc course in preference to respondent No. 7 with lesser marks.
16. Consequently, I allow the writ petition, so far as it pertains to selection and admission of respondent No. 7 to B.V.Sc course and quash the same, by way of writ of certiorari and command the respondents to admit the petitioner to undergo BV.Sc Course on the basis of his merit, against the seat allocated to respondent No. 7 in the said course. However, the writ petition, so far as it pertains to respondents No. 3 to 6, stand dismissed.
17. Record of original application forms, produced by Mr. D.C. Raina, be returned to him after preserving photo copies of the application forms on the record, against proper receipt.