Gyan Sudha Misra, J. - (1.) The petitioner is a student studying in Second Year Bachelor of Engineering Course in Malviya Regional Engineering College (for short the 'college ) at Jaipur which is respondent No. 2 herein, in Civil Engineering Brach. A notice was put up on the notice board of the college on 4.12.98 wherein it was informed that the students would be allowed to change their subject/branch for various categories belonging to Second Year B.E. (4 year course) in the current session and the change-over will be strictly in accordance with the merit. The petitioner who at the moment is undergoing the Second Year Course in Civil Engineering Branch was interested for a change-over to either Mechanical Engineering or Chemical Engineering Branch. However, among the seats which were available for general category candidates in these branches, the petitioner had no chance of switching over in either Mechanical Engineering or Chemical Engineering Branch, but certain seats were left to be filled-up for these branches which initially were available for the reserved category candidates belonging to the Scheduled Caste and Scheduled Tribe. However, adequate number of students were not available for switch over to these subjects from the reserved category candidates as a result of which the seats in these branches were lying vacant. The petitioner, therefore, represented before the authorities of the college for a switch-over to these branches against the seats of reserved category candidates which were lying vacant but the authorities expressed their inability to allow this change as the seats were ear-marked for the reserved category candidates and even if it were lying vacant no relief could be granted to the petitioner. The petitioner tried to impress upon the authorities by urging that in view of the decisions of the Supreme Court in case of Post-graduate Medical admission the vacant seats even if it were ear-marked for the reserved category candidates, could be filled up by the general category candidates if sufficient number of candidates were not available for such seats. However, the authorities expressed their inability in this regard. The petitioner, therefore, has moved this Court for a direction to the respondents to allow the change of branch and opt for the branches in which seats are lying vacant even if those seats had initially been ear-marked for SC/ST candidates.
(2.) The principal ground of the petitioner, therefore, in support of his plea is that the respondents themselves had invited a change over from one branch to the other and if sufficient number of candidates in the reserved category were-not available in the branch in which the petitioner was interested, then those seats should have been made available to the candidates in order of merit. According to his case he is the second candidate in order of merit for such change-over to either Mechanical or Chemical Engineering Branch and the entire force of his submission is his reliance on the Apex Court judgment reported in AIR 1996 SC 2066 Gujarat University v. Rajiv Gopinath Bhatt & Ors. and the AIR 1988 SC 1812 Dr. Jeevak Almast v. Union of India & Ors. wherein it has been laid down that any rule which allows seats to remain unfilled by the reserved category candidates is an irrational rule and such a provision is not fit to be sustained meaning thereby that if reserved seats are lying vacant, the same should not-be allowed to go waste and candidates even from the general category may be allowed the opportunity of availing those seats. Another decision relied upon by the petitioner's advocate is AIR 1988 S.C. 1812 (supra) on the same point regarding filling up of the vacancies of the unfilled seats of the reserved category to be filled up by the general category candidates. The Apex Court has no doubt held that unfilled seats of the reserved category may be filled up by the general category candidates if such candidate is otherwise eligible and on this count the plea of the petitioner is quite justified.
(3.) It was, however, argued on behalf of the respondents that even if the seats of the reserved category are to be filled up by the general category candidates, this opportunity should be granted to all students who are eligible and not merely the petitioner. Mr. Maitra has fairly accepted this position and stated that the submission although is right the petitioner qualified on this count also since he stands second in the order of merit and there are 3 seats vacant on which any student would be eligible. Thus the petitioner obviously will be fit to be accommodated in any of the 3 seats. It has further been pointed out that this kind of change should not be permitted at the fag end of the course since the petitioner after switch over is required to fill up the form and deposit fee although he would not have undergone the course in a particular branch. This difficulty has also been obviated by the petitioner's advocate as it has been submitted that out of 9 papers 5 are common for all. the branches and the rest of the 4 papers can be completed by the petitioner by the end of May, 1999 when the final examination is scheduled to take place although the fee and forms are to be filled up by 5.3.99. However, this cannot be the look out of the Court as to what would be the implication in case the change is permitted by this Court as it is for the petitioner to face the impact of change as this Court is concerned only with the dispute as to whether the respondents could have disallowed the petitioner from switching over to a different branch of the course although the seats remained unfilled in the reserved category and the change-over was also invited by way of notice dated 4.12.98. However, it may be incidentally observed that if the notice of the change-over by the college itself was permitted rather invited in December, 1998, the implication of the change must have been well though-out by the authorities of the college before permitting such change. This Court would thus say no more than this, in this regard.;