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2026 DAILYLAW 4420 (ALL)

Kuldeep Kumar v. State of U. P.

2026-01-22

Vivek Saran

body2026
JUDGMENT : VIVEK SARAN, J. 1. Heard Sri Ravi Shekhar Sharma, learned counsel for the petitioner and Sri Vaibhav Tripathi, learned counsel for the respondent nos.1 to 3. 2. The instant petition has been filed with the following reliefs: "1. Issue a writ, order or direction in nature of certiorari to quash the Paragraph 4 of Clause 7 of the prospectus (prospectus is annexed as Annexure No.1 to this writ petition). 2. Issue a writ, order or direction in nature of mandamus commanding the respondents to take admission to petitioners on their reserved (SC) seats in Govt. Unani Medical College. 3. Issue a writ, order or direction in the nature of mandamus commanding the respondents to decide the representation dated 12.01.2025 (annexure no.2 to this writ petition)." BRIEF FACTS OF THE CASE 3. The brief facts of the case are that the petitioners namely, Kuldeep Kumar and Vikas Gautam appeared in the AIAGET-2024 Post Graduate Entrance Examination in Unani Medicine and Surgery (BUMS) subject and the petitioner no.1 scored 23.2039268 percentile (equivalent to 23.20 per cent) and petitioner no.2 scored 24.0963855 percentile (equivalent to 24.09 percent). Both the petitioners belong to the Scheduled Caste category and their results of the examination was declared on 31.07.2024. The result dated 31.07.2024 of both the petitioners also discloses the all India categorywise cut off score which is as follows: All India Category wise Rank Category Cut off Percentile Cut off Score No. of candidates Category Cut off Percentile Cut off Score No. of Candidate UR/EWS 50th Percentile 365-157 1113 UR/EWS-PwD 45th Percentile 153-152 2 OBC 40th Percentile 155-137 112 OBC-PwD 40th Percentile - - SC 40th Percentile 154-152 2 SC-PwD 40th Percentile - - ST 40th Percentile 150-142 2 ST-Pwd 40th Percentile - - 4. The cut off for Scheduled Caste category to which the petitioner belong was 40 percentile in the result dated 31.07.2024. 5. The Ayush Department of State of U.P. published the admission brochure for academic year 2024-25 for which admission process on the seats of P.G. courses for U.P. Ayush P.G. seats and according to which the counselling procedure for the academic session 2024-25 was to be adopted for the U.P. Ayush P.G. seats. The counselling was to take place in four rounds viz:(i) Pratham Chakra, (ii) Dwitiya Chakra, (iii) Tritiya Chakra and (iv) Stray Chakra Counselling. 6. The counselling was to take place in four rounds viz:(i) Pratham Chakra, (ii) Dwitiya Chakra, (iii) Tritiya Chakra and (iv) Stray Chakra Counselling. 6. It is the National Commission for Indian System of Medicine (hereinafter referred to as 'NCISM'), which is a statutory body established under Section 3 of the National Commission for Indian System of Medicine Act, 2020 which is the body competent to determine the cut off merits at each round of counselling. 7. The NCISM during the course of U.P. P.G. Counselling reduced the required cut off merit and during the third round of counselling by letter dated 20.11.2024 reduced 15 percentile of the cut off merit for each of the categories. The said fact is recited in paragraph 4 of the counter affidavit which reads as under: “….. It is further submitted that pursuant to the letter of NCISM dated 20.11.2024, it has been decided by the Board that reduction of 15 percentile be provided to each categories of candidates, as such no candidate be deprived from getting admission in view of the fact that in their round of counselling there is a provision of converting/absorbing the seats into other categories…...” 8. Thus for the third round of U.P.P.G. Counselling the cut off percentile for admission of Scheduled Caste category candidates became 25 percent. However, even at this time both the petitioners could not apply as their merit was lower than the qualifying percentage. During the third round of counselling the remaining seats reserved for SC category got migrated to the General category by virtue of Clause 7(4) of the Brochure, this Clause 7(4) reads as under: ^^r`rh; pdz esa vkjf{kr lhVksa dk vkesyuA ifjorZu %& 9. Thereafter, during the fourth round of counselling which is the stray chakra counselling, the NCISM further reduced the cut off percentile by 5 percentile by letter dated 13.01.2025 so as to enable the remaining unfilled seats be offered, the petitioners applied for participation in the fourth round of counselling by making deposit of the requisite amount of Rs.2000/- on 09.01.2025. It is however not clear from the averments made in the writ petition as to what was the outcome in the fourth round of counselling in which the petitioners participated. 10. Now after participating in the fourth round i.e. the stray chakra counselling the petitioners approached this Court challenging the Clause 7(4) of the Brochure. It is however not clear from the averments made in the writ petition as to what was the outcome in the fourth round of counselling in which the petitioners participated. 10. Now after participating in the fourth round i.e. the stray chakra counselling the petitioners approached this Court challenging the Clause 7(4) of the Brochure. CONTENTION OF THE PETITIONER 11. Learned counsel for the petitioner submitted that Clause 7(4) of the Brochure for admission for the Academic Year 2024-25 (hereinafter referred to as 'Brochure') is arbitrary inasmuch as migration of seats from SC category to open category during the third round of counselling cannot be permitted. Even in absence of any suitable candidate attaining the cut off percentile at the relevant third round of counselling. Learned counsel for the petitioner has placed reliance on Section 3(1) and Section 3(6) of the Uttar Pradesh Public Services (Reservation of Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as ‘the Act of 1994’) and the judgment rendered by the Hon’ble Supreme Court in Union of India vs. Ramesh Ram and Others , (2010) 7 SCC 234 , Avika Shahi and Others vs. Medical Counselling Committee and Ors. , Neutral Citation-AIR 2025 Delhi 217 and Saurav Yadav and Others v. State of Uttar Pradesh and Others , (2021) 4 SCC 542 only by reference made in the Rejoinder Affidavit. CONTENTION OF THE RESPONDENT 12. Per contra, learned Standing Counsel for the respondent/State vehemently submitted that for the purposes of Uttar Pradesh Ayush P.G. Counselling 2024 (hereinafter referred to as U.P. P.G. Counselling) a Government Order dated 02.09.2024 was issued which infact has not been challenged and the Brochure has been framed in the lines of the said Government Order. He further submits that the State Government has taken care of the reservation policy and it is for the State Government to provide reservation and the petitioner do not have any fundamental right to claim the same. He further submits that in absence of any challenge to the Government Order dated 02.09.2024, Clause 7(4) of the Brochure cannot be termed to be violative of any provisions of law. He further submits that in absence of any challenge to the Government Order dated 02.09.2024, Clause 7(4) of the Brochure cannot be termed to be violative of any provisions of law. Learned Standing Counsel further submitted that the counselling for the U.P. Ayush P.G. Counselling, 2024-25 has already concluded, in support of the said submission, he has placed reliance on Annexure-CA1 to the counter affidavit which is letter dated 10.07.2025 written b the Director, Unani Services, U.P., Lucknow. 13. Heard learned counsel for the parties and perused the record. ISSUES FOR CONSIDERATION 14. The questions which falls for consideration before this Court are as follows: (I) Whether the migration of ‘unfilled Scheduled Caste category seats’ to the open category was permissible under law during the third round of counselling by virtue of Clause 7(4) of the admission brochure? (II) Whether any mandamus can be issued directing the respondents to allot SC Category seat to the petitioner? ISSUE NO.1 15. The State Government vide its order dated 02.09.2024 took a policy decision for U.P. Ayush P.G. Counselling-2024 on the basis of score obtained in AIAPGET examination. The subject of Government Order dated 02.09.2024 reads as under: 16. In Clause 10(V) of the Government Order dated 02.09.2024, the migration of seats which remained unfilled of the reserved category in the third round of counselling is provided. The said clause 10(V) reads as under: 17. In Clause 14(1) of the Government Order provides to offer remaining unfilled seats to all candidates. Thus the offer of seats to the petitioner in the fourth round/stray chakra was not on account of reservation but as the remaining seats had to be offered to all. Relevant Clause 14(I) of the Government Order reads as under: 18. Now coming to Clause 7(4) of the Brochure as referred to above, it is seen that the said clause is in accordance with the Government Order dated 02.09.2024 issued by the State Government. 19. Relevant Clause 14(I) of the Government Order reads as under: 18. Now coming to Clause 7(4) of the Brochure as referred to above, it is seen that the said clause is in accordance with the Government Order dated 02.09.2024 issued by the State Government. 19. With regard to the judgment passed by the Hon’ble Supreme Court in the case of Saurav Yadav and Others (Supra), which was referred to by the learned counsel for the petitioner it is to be noted that the Hon'ble Supreme Court while dealing with the issue of migration of seats in absence of any suitable candidate in a particular category had left it to the wisdom of the competent authority to take can take a decision regarding the unfilled seats. The relevant paragraphs 49 and 59 reads as under: "49. If there are unfilled vacancies, it is upto the authorities to act purely in terms of the concerned statutory provisions. Neither any case for issuance of mandamus, as prayed for, has been made out nor do we think it appropriate to pass any orders directing the concerned authorities to absorb the petitioners against unfilled vacancies. ......................................... 59.4. If the vacancies cannot be filled by the specified categories due to shortfall of candidates, the vacancies are to be 'carried forward' or dealt with appropriately by rules." 19. With regards to the judgment rendered in Ramesh Ram (Supra) referred to by the learned counsel for the petitioner is concerned, the same is not applicable in the instant case inasmuch as the same was related to Civil Services Rules and dealt with the issue as to whether the reserved candidate who were selected on merit and placed in the list of general category candidates could be considered as reserved category candidates at the time of 'service allocation'. 20. With regards to the judgment rendered in Avika Shahi (Supra) referred to by the learned counsel for the petitioner is concerned, the said judgment is also not applicable in the facts and circumstances of the instant case as the Hon'ble Court dealt with the question of horizontal reservation. 21. In so far as the applicability of Section 3 of the Act of 1994 is concerned the same has no bearing at all as the Act of 1994 relates to Public Services and not to the admission in the educational courses. 21. In so far as the applicability of Section 3 of the Act of 1994 is concerned the same has no bearing at all as the Act of 1994 relates to Public Services and not to the admission in the educational courses. The statement of Act reads as under: “Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II: Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which the recruitment is to be made;” 22. Thus the reliance of the said provisions in the case of petitioner by learned counsel for the petitioner is wholly misconceived. 23. Thus in view of the aforesaid decision, this Court is of the considerate opinion that Clause 7(4) of the Brochure in accordance with the policy decision of the State Government issued vide Government Order dated 02.09.2024 and therefore, it cannot be faulted especially in absence of any challenge to the said Government Order dated 02.09.2024. ISSUE NO.2 24. It has been settled in catena of judgments that the right to claim reservation is not a fundamental right and no writ of mandamus to enforce the same is to be issued. The Hon'ble Supreme Court in Andhra Pradesh Public Service Commission v. Baloji Badhavath and Others , (2009) 5 SCC 1 vide paragraph-18 has held as under: "18. The Constitution of India lays down provisions both for protective discrimination as also affirmative action. Reservation of posts for the disadvantaged class of people as also seats in educational institutions are provided for by reason of Articles 15 and 16 of the Constitution of India. Reservation made for the members of the Scheduled Castes, Scheduled Tribes and other Backward Classes would, however, is subject to Article 335 of the Constitution of India. Concededly, no citizen of India can claim reservation as a matter of right. The provisions contained in Articles 15 and 16 of the Constitution of India are merely enabling provisions. No writ of or in the nature of mandamus, thus, could be issued. Concededly, no citizen of India can claim reservation as a matter of right. The provisions contained in Articles 15 and 16 of the Constitution of India are merely enabling provisions. No writ of or in the nature of mandamus, thus, could be issued. [See C.A. Rajendran v. Union of India & Others, (1968) 1 SCR 721 at 731-733, Indra Sawhney and Others v. Union of India and Others [1992 Supp (3) SCC 217, para 165 to 169, 428 to 432, 741 and 742, Ajit Singh and Others (II) v. State of Punjab and Others (1999) 7 SCC 209 , para 32 to 39, State of Punjab and Others v. Manjit Singh and Others (2003) 11 SCC 559 , para 7 and 12]." 25. The aforesaid judgment has also been followed by this Court in the case of Bhuvnesh Pachauri v. State of U.P. and Others , 2018(6) ADJ 22 . 26. The Hon’ble Supreme Court in the case of Amrit Yadav v. State of Jharkhand and others , 2025 SCC OnLine SC 280, reported in vide paragraph 20 has observed as under: “20. Further, the position of law is settled that though there is no fundamental right to claim reservation as Articles 16(4) and (4-A) of the Constitution of India are in the nature of enabling provisions only and do not mandate the State or its instrumentalities to provide reservation in every selection process but inspite thereof, the State’s decision to not provide reservation has to be based on some quantifiable data and valid reasoning." 27. It is the well settled law that the reservation has to be taken care of by the concerned Government and the statutory body which in the present case is Government of U.P. and the NCISM. The statutory authority/NCISM had determined the merit i.e. the cut off for selection at each stage and the Government of U.P. have provided for the manner in which reservation of seats were to be provided vide Government Order dated 02.09.2024. 28. In view of the aforesaid discussion, no mandamus as prayed for can be granted. 29. The petition lacks merit and is accordingly, dismissed. 29. No order as to cost.