Parvathy S. v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 23[RD] DAY OF JUNE 2022 / 2ND ASHADHA, 1944** ## **WP(C) NO. 19815 OF 2022** ## **PETITIONER/S:** PARVATHY S. AGED 25 YEARS, D/O V. SASIDHARAN PILLAI, AGED 25, "SREESIVAM" MOONNALAM, ADOOR P.O., PATHANAMTHITTA DISTRICT-691 523. BY ADVS. V.N.SANKARJEE R.UDAYA JYOTHI KEERTHI B. CHANDRAN M.SUSEELA VIJAYAN PILLAI P.K. V.N.MADHUSUDANAN M.M.VINOD C.PURUSHOTHAMAN NAIR NITHEESH.M ## **RESPONDENT/S:** 1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF INDIA, NIRMAN BHAVAN, NEW DELHI-110 011. 2 THE DIRECTOR, NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES, MAHATMA GANDHI MARG (RING ROAD), ANZARI NAGAR, NEW DELHI-110 029. 3 THE JOINT DIRECTOR, NATIONAL BOARD OF EXAMINATIONS IN MEDICAL SCIENCES, MAHATMA GANDHI MARG(RING ROAD), ANZARI NAGAR, NEW DELHI-110 029. 4 THE TAHSILDAR, TALUK OFFICE, ADOOR, PATHANAMTHITTA DISTRICT-691 523. 5 THE VILLAGE OFFICER, VILLAGE OFFICE, ADOOR, PATHANAMTHITTA DISTRICT-691 523. ## **OTHER PRESENT:** ASGI S.MANU; SC T.SANJAY; GP AMMINIKUTTY K **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.19815 of 2022 -2- ## **JUDGMENT** Dated this the 23[rd] day of June, 2022 The petitioner had submitted an application for NEET-PG, 2022 under the Economically Weaker Section (EWS) category. Candidates applying under EWS category have to produce an Income and Asset Certificate in the prescribed form, issued by the competent authority/Tahasildar. Accordingly, the petitioner submitted an application for Income and Asset Certificate before the 4[th] respondent. However, the 4[th] respondent refused to issue the certificate on the premise that her family owns a residential flat having plinth area of more than 1000 sq.ft. Immediately thereupon the petitioner attempted to edit her online application so as to change the category from EWS to General. As the system did not permit the correction, petitioner sent online request to the NBEMS, requesting to correct the ## W.P.(C) No.19815 of 2022 -3- mistake. In its reply, the NBEMS directed the petitioner to carry out the correction when the edit windows are opened for the purpose. On enquiry, petitioner came to know that the edit windows were kept open from 29.03.2022 to 07.04.2022, which period was already over. The petitioner appeared for the exam conducted on 21.05.2022 and secured rank No.1159. Based on her rank, petitioner is eligible to obtain admission for Medical PG Course in General category. The petitioner apprehends that as she had applied under the EWS category, she will not be permitted to participate in the counseling, as a candidate belonging to the General category. Hence, the writ petition seeking the following reliefs; _“(a) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 2nd and the 3rd respondents to change the petitioner's category as General_ W.P.(C) No.19815 of 2022 -4- _Category in the NEET-PG 2022 before the commencement of the first allotment process;_ _(b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the 2nd and the 3rd respondent for providing allotment and admission to the petitioner in the NEET-PG 2022 Examination in the General Category at the first allotment itself;”_ 2. Dr.V.N.Sankarjee, learned Counsel for the petitioner submitted that the petitioner had submitted application as a candidate belonging to the EWS category under the _bona fide_ belief that the fourth respondent will issue the requisite certificates. Even though the reason for refusing to issue the Income and Asset Certificate is wrong, the petitioner is not challenging the action of the 4[th] respondent, since she is eligible for admission in the General category. It is contended that merit being the prime consideration for admission, a mistake in the ## W.P.(C) No.19815 of 2022 -5- application cannot be taken as a reason to deny admission based on merit. It is settled law that if a reserved category candidate secures sufficient rank for admission/appointment under the open merit quota, such reserved category candidate will have to be first adjusted and considered for appointment in the General category pool. Applying the same principle, the petitioner will have to be considered as a General category candidate on the strength of her rank, and not as a reserved candidate based on the entry in her application. In support of the contention, learned Counsel placed reliance on the following decisions; _**Saurav Yadav and others v. State of Uttar Pradesh and others [2021(4) SCC 542], Dr.Jagdish Saran and others v. Union of India and others [1980 (2) SCC 768], Bharat Sanchar Nigam Limited and anr. v. Sandeep Choudhary and others [Civil**_ ## W.P.(C) No.19815 of 2022 -6- ## _**Appeal No.8717 of 2015]**_ 3. Adv.T.Sanjay, learned Counsel for the NBEMS contended that, having applied under the EWS category, the petitioner cannot turn around and seek admission under the General category. It is submitted that candidates were instructed to ensure that the information entered during online submission application is correct and factual. NBEMS does not edit/modify/alter any information entered by the candidates at the time of online submission of applications. Attention is drawn to Clause 8.14 of Ext.P5 information bulletin, advising the candidates not to complete their application registration process in a haste so as to avoid errors in the information provided. Further, under Clause 8.21, all editable fields in the application form shall be open for the candidates to make corrections if so required. The edit window was accordingly kept open from ## W.P.(C) No.19815 of 2022 -7- 29.03.2022 to 07.04.2022 for carrying out the corrections. Clause 8.24 makes it clear that no editing in the information provided shall be permissible after edit window is closed. It is contended that, having failed to avail the opportunity of changing her category when the edit window was kept open, the petitioner cannot seek a mandamus directing the NBEMS to carry out the category change. It is pointed out that about one lakh eighty thousand candidates had participated in the single window entrance examination conducted by the NBEMS and the admission process being completely system based, any intervention will have a debilitating as well as cascading effect. Finally, it is contended that the petitioner having wrongly claimed EWS status, her application was liable to be summarily rejected as provided under Clause 2.11 of Ext.P5. 4. There is a clear admission on the part ## W.P.(C) No.19815 of 2022 -8- of the petitioner that the 4[th] respondent refused to issue an Income and Asset Certificate finding that the petitioner does not belong to the Economically Weaker Section. As such, it has to be held that the petitioner had made a wrong entry as to her category. Even accepting that the petitioner will be eligible for admission in the General category based on her rank, the question is whether the discretion vested with this Court under Article 226 is to be exercised in favour of a person who made a wrong claim for reservation. The proposition laid down in the decisions relied on by the learned Counsel for the petitioner will not come to the aid of a candidate who had wrongly claimed reservation. Moreover, the petitioner did not avail the opportunity to correct the mistake when the edit windows were kept open for that purpose. Having failed to do so, the petitioner cannot seek a direction to the NBEMS to either change the ## W.P.(C) No.19815 of 2022 -9- category or consider her as a General category candidate. I also find merit in the submission of the Counsel for the respondent that intervention by the Court at this stage will have a cascading effect on the prospects of the eligible candidates. It is for the NBEMS to decide as to whether the petitioner can be allowed to participate in the counseling process as a General candidate, in spite of having entered the category as EWS in her online application. The writ petition is dismissed with the above observations. Sd/- ## **V.G.ARUN JUDGE** Scl/23.06.22 W.P.(C) No.19815 of 2022 -10- ## **APPENDIX OF WP(C) 19815/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PETITIONER'S NEET-PG 2022 APPLICATION AS UPLOADED. Exhibit P2 TRUE COPY OF THE ADMIT CARD ISSUED BY THE 3RD RESPONDENT. Exhibit P3 TRUE COPY OF THE SCORE CARD ISSUED TO THE PETITIONER. Exhibit P4 TRUE COPY OF THE INCOME CERTIFICATE DATED 2.4.2022 ISSUED BY THE 5TH RESPONDENT. Exhibit P5 TRUE COPY OF THE NOTIFICATION (RELEVANT PAGES) ISSUED BY THE 2ND RESPONDENT. Exhibit P6 TRUE COPY OF THE PETITIONER'S EMAIL AND ITS REPLY BY NBEMS HELP DESK FROM 1.5.2022 TO 13.6.2022 MART PAGES RELEVANT PAGES.