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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.: 1992 of 2017

Reserved on: 05.12.2017

Date of Decision: 12.01.2018

______________________________________________________________________
Archana Thakur …..Petitioner.

Vs.

State of Himachal Pradesh and others …..Respondents.

Coram:
The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice
The Hon’ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioner: Mr. Sanjeev Bhushan, Senior Advocate,
with Ms. Abhilasha Kaundal, Advocate.

For the respondents: Mr. Shrawan Dogra, Advocate General,

with M/s. Romesh Verma and Anup
Rattan, Additional Advocate Generals
and Mr. Kush Sharma, Deputy Advocate
General for respondents No. 1 and 3.

Mr. J.L. Bhardwaj, Advocate, for

respondent No. 2.

Ajay Mohan Goel, Judge (Oral):

By way of this writ petition, the petitioner has prayed

for the following reliefs:

“(i) That a writ in the nature of mandamus

may very kindly be issued and the respondents may
very kindly be directed to grant admission to the

Whether the reporters of the local papers may be allowed to see the Judgment?
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petitioner in M.Sc. Physics Course in Gobind Balabh

Panth Memorial Government College, Rampur
Bushahr, H.P. in the interest of law and justice.
(ii) Any other relief as may be deemed just
and proper keeping in view the facts and
circumstances of the case may also be granted in
favour of the petitioner.”

2. Case of the petitioner was that respondent No. 2 had

invited applications from eligible candidates for admission to various

courses for the academic Session 2017-2018, which includes M.Sc.

Physics course. According to the petitioner, she being eligible, applied for

the said course and roll number allotted to her to appear in the entrance

examination was 16062. The entrance examination was held on

07.07.2017. She secured 30 marks in the same, which is evident from

Annexure P-4. It was further the case of the petitioner that on the

strength of marks so obtained by her, she was not able to make it in the

merit list. Further as per the petitioner, respondent No. 3-College, which

had earlier issued a Prospectus for admission of courses available with it

for the Session 2017-18, was also later on permitted to admit candidates

in MA and M.Sc. classes, including an intake of 20 students in M.Sc.

Physics, by respondent No. 2. Applications in this regard were invited and

the petitioner submitted her application well before the last date, i.e.,

29.07.2017. Counselling took place on 1st and 2nd August and in

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furtherance of the same, 13 candidates were admitted as per

communication Annexure P-6, dated 03.08.2017, on the strength of

entrance examination, which stood conducted by respondent No. 2-

University. Name of petitioner found mentioned at Sr. No. 2 in the waiting

list (Annexure P-8). It was further the case of the petitioner that out of

three candidates, who had applied for admission against the seats

reserved for SC category, two were able to gain admission on the strength

of their merit against open category seats. No candidate belonging to ST

category had applied for the course. This resulted in seats reserved for SC

and ST categories remaining unfilled. Grievance of the petitioner was that

despite the fact that candidates like the petitioner, who were in the

waiting list as per Annexure P-8 were available, respondents rather than

offering vacant seats on merit to general category candidates, were not

making any efforts to fill the same. It was in this background that the

present petition was filed.

3. During the pendency of the petition, on 12.09.2017, this

Court passed the following order:

“Let response be filed positively within two

weeks. Rejoinder thereto, if any, within one week
thereafter.
In the meanwhile, we direct that the seat(s)
which are lying unfilled, be offered to the next
meritorious candidate(s) and be filled up positively
within two days from the open category candidates.
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List on 10th of October, 2017, as prayed

for.”

4. We are informed that on the strength of order, dated

12.09.2017, the petitioner stands admitted to the course in issue.

5. Reply(s) to the writ petition stands filed by the respondents.

6. The moot issue involved in this writ petition is as to whether

in the admission process, which is initiated by respondent No. 2, in case

sufficient number of candidates belonging to SC and ST categories are

not available and the seats are lying vacant, whether these seats can be

filled up from amongst the candidates of general category, who otherwise

are eligible for admission, as per the merit secured by them in the

entrance examination or the seats should be allowed to remain unfilled?

7. Before proceedings any further, we would like to clarify that

herein it is not a case of appointment. The case is of admission to a

particular course and in each academic Session, fresh admissions are

made to the 1st Year or the 1st Semester of the course, as the case may

be, meaning thereby that left over seats are not “carried forward”. Any

seat, which remains vacant, remains unfilled for the entire duration of

that particular course. In this background, in a given situation, where

seats reserved for SC and ST candidates remain unfilled, in our

considered view, it is both in the interest of institution as well as the

students that the said seats should not be allowed to go unfilled and they
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should be filled from amongst open category candidates, in case eligible

candidates are available, who can be given admission against the vacant

seats, on the strength of merit so secured by them in the entrance

examination. In case this is done, the same will not at all affect the

interests of SC and ST categories, for whom the seats were otherwise

reserved, because this exercise shall be undertaken by the institution

only if after exhausting the list of eligible SC and SC candidates, yet seats

remain vacant. On the other hand, by offering the seats to eligible

candidates from open category, this will not only facilitate more

candidates to gain education in the course in issue, it will also result in

optimum utilization of the resources, because it is obvious that the

institution in issue has the infrastructure to impart education to number

of students, it is permitted to admit.

8. It is common knowledge that seats available in various

academic courses in colleges and universities are far below the number of

applicants. This obviously means that sears are at a premium and all

efforts should be made to ensure that as far as possible, the seats are not

wasted. It is relevant to refer to the judgment of Hon’ble Supreme Court

in Charles K. Skaria and others Vs. Dr. C. Mathew and others, (1980)

2 Supreme Court Cases 752, in which Hon’ble Supreme Court has

observed that welfare-oriented judicial process must be constructive in its

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objective, must be geared to order as its goal and must pave the way for

resultant contentment.

9. It is not a disputed factual position that vacant seats

belonging to reserve category even in courses like MBBS, are not allowed

to remain unfilled. A seat which is reserved for Scheduled Caste category,

is firstly offered to a candidate belonging to Scheduled Tribe category if it

is not filled up by a Scheduled Caste candidate and if the seat even after

being offered to Scheduled Tribe candidate remains unfilled, same is

thereafter offered on merit to open category candidate. This factual

position could not be disputed even by the State during the course of

arguments.

10. At this stage, it is relevant to refer to a judgment of Hon’ble

Supreme Court in Medical Council of India Vs. Madhu Singh and

others, (2002) 7 Supreme Court Cases 258, in which case, Hon’ble

Supreme Court was dealing with admissions to Medical College, has

deprecated the practice of directing mid-session admissions. Though, in

the aforementioned case, the Hon’ble Supreme Court was dealing with

the admission to Medical Colleges, however, in our considered view,

necessity of timely admissions and avoiding mid term admissions is

required in other educational streams also.

11. In Neelu Arora (Ms.) and another Vs. Union of India and

others, (2003) 3 Supreme Court Cases 366, a three Judge Bench of

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Hon’ble Supreme Court has held that if seats are unfilled, the same

cannot be a ground for making mid-session admissions and there cannot

be telescoping of unfilled seats of one year with permitted seats of the

subsequent year. Hon’ble Supreme Court was dealing with admissions to

MBBS/BDS courses. It is relevant to take note of the fact that above

adjudications have been made by the Hon’ble Supreme Court because a

time frame has been put in place as to how admissions are made in

MBBS/BDS courses and further in order to achieve the said time

schedule, when the counseling is to be conducted.

12. Therefore, the process of identifying such vacant seats which

remains unfilled after exhausting the list of reserve category candidates

should be filled before the commencement of academic year so that there

is no eventuality of mid-academic admissions, which stands deprecated

by the Hon’ble Supreme Court.

13. Accordingly, we dispose of this petition with the

direction to respondents No. 1 and 2 that for academic Sessions

necessary instructions be imparted to the effect that vacant reserved

seats meant for SC and ST categories in educational institutes including

Schools, Colleges and Universities, which remain unfilled after

exhausting the list of available and eligible SC and ST candidates, should

be thereafter offered and filled from amongst eligible candidates from

open category on the basis of merit. We clarify that in case any cut off
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limit has been fixed, then only those candidates of open category should

be admitted against the vacant seats, who have gained marks at par with

the cut off limit.

Petition stands disposed of, so also miscellaneous

applications, if any. No order as to costs.

(Sanjay Karol)
Acting Chief Justice

(Ajay Mohan Goel)

Judge
January 12, 2018
(bhupender)