Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 1039 (PNJ)

Kohal Sharma v. Union Of India

2004-09-13

J.S.NARANG, S.S.NIJJAR

body2004
Judgment S.S.NIJJAR, J. 1. We have heard counsel for the parties at length and persued the paper-book. 2. The petitioner had applied for admission in the LL.B. five year degree Course in the category of 80% seats reserved for the wards of Army and Ex Army Personnel. Father of the petitioner had retired after serving the Indian Air Force from 14-5-1971 to 31-5-1986 as Sergeant. The respondents-Institute have denied admission to the petitioner on the ground that his father does not fall within the ambit of Clause 4.1(B) of the Prospectus. The petitioner has, therefore, filed the present writ petition under Art. 226/227 of the Constitution of India praying for the issuance of a writ in the nature of Certiorari quashing the decision of the respondents-Institute rejecting the candidature of the petitioner and also for the issuance of a writ in the nature of Mandamus directing the respondents to admit the petitioner to the LL.B. five Year Degree Course. 3. The respondent-Institute have filed a written statement. The claim put forward by the petitioner has been denied on the ground that the petitioner does not fall within the ambit of Clause 4.1(B) of the Prospectus for the Session 2004-2005 issued by the respondents-Institute. The respondents-Institute have also raised two preliminary objections. It is stated that the writ petition is not maintainable against the Institute as it would not fall within the definition of "State" or "other authorities" under Art. 12 of the Constitution of India. Army Institute of Law (AIL for short) functions under the aegis of Army Welfare Education Society (AWES, for short) which is a registered Society under the Registration of Societies Act XXI of 1860. AIL is funded exclusively by AWES and is not taking any grant or aid from the Government. Hence the writ petition is not competent. The respondents-Institute also pleaded that the writ petition deserves to be dismissed as the petitioner has not come to Court with clean hands. We are unable to accept the preliminary objections of the respondents-Institute. The AIL is performing a public function of imparing legal education. Therefore, in view of the law laid down by the Supreme Court repeatedly, it would not be possible to hold that the writ petition is not maintainable against the respondents-Institute. We are unable to accept the preliminary objections of the respondents-Institute. The AIL is performing a public function of imparing legal education. Therefore, in view of the law laid down by the Supreme Court repeatedly, it would not be possible to hold that the writ petition is not maintainable against the respondents-Institute. In the case of Unni Krishnan, J.P. V/s. State of Andhra Pradesh (1993) SCC 645 : (AIR 1993 SC 2178) it has been held that so long as the Institute is performing a public function, writ petition would be maintainable against the same. We are also of the opinion that the petitioner has not misrepresented the facts in such a manner as to entail dismissal of the writ petition. The petitioner has merely presented an interpretation of the various clauses of the Prospectus. He has stated that he is the son of a retired Air Force Officer. He has claimed that reservation of seats is for wards of Defence Personnel and cannot be restricted to the wards of Army Personnel. This can hardly be said to be a misrepresentation. We reject the second preliminary objection raised by the respondents, also. 4. In order to appreciate the submissions made by the learned counsel for the petitioner, it is necessary to notice relevant provisions of the Prospectus for the Sessions 2004-2005 which are as under :- "4. SEATS Total Seats ............................................. 80 Wards of Army Personnel ..................... 64 Punjab Residents ................................... 12 All India General Category ..................... 04 NOTE : Increase in seats to 100 is subject to approval. 4.1 ELIGIBILITY CRITERIA FOR WARDS OF ARMY PERSONNEL. The wards of the following categories of Army Personnel are eligible to claim benefit of Army Category for which, they must indicate in the application form and they will have to submit the Certificate, mentioned according to their Category (specimen forms of certificates are attached at Annexure III to the prospectus), at the time of their interview, failing which they shall not be entitled to the benefit of Army Category : (A) The applicant must be ward of a serving regular Army personnel. ...................................... (Certificate-A). (B) The applicant must be ward of Retired Army person who is in receipt of a regular pension ........................................ (Certificate B) (C) A war widow candidate who is in receipt of a liberalised pension ....................................... ...................................... (Certificate-A). (B) The applicant must be ward of Retired Army person who is in receipt of a regular pension ........................................ (Certificate B) (C) A war widow candidate who is in receipt of a liberalised pension ....................................... (Certificate C) (D) Wards of those Medical Officers presently serving with IN or IAF who have served with the Army for more than 10 years and who are members of AOBF ....................................... (Certificate D) (E) Wards of APS Personnel classified as ex-servicemen as per Government of India, Ministry of Defence Letter No. 9(52)/88/D(Res.), dated 19 July, 1989. Wards of those APS personnel who are on deputation and who have put in more than 10 years of service in the Army. Wards of APS personnel who are directly recrutied into APS and of those who as per their terms and conditions of service, retired from APS after completing their minimum pensionable service ....................................... (Certificate E) (F) Wards of only those MNS officers who have 10 years service as regular MNS officers or are in receipt of pension from the Army. .......................................... (Certificate F) (G) Children of TA presonnel who have completed 10 years service as embodied service as per Army HQ letter No. B/45803/AWES/CW-4(a) 3 dated 17 Feb. 1997 ......................................... (Certificate G) (H) Children of ex-servicemen and Ex. SS Officers who have taken retirement after 10 years of service will be eligible for admission vide letter No. B/45715/AandR/AWES dated 30 Oct. 2003 ......................................... (Certificate H) Note : (i) Children of Regular Army personnel retired from regular army with pensionary benefits, and have joined in Assam Rifles, BSF, TA, NCC, DSC, are eligible to apply for admission. (ii) Adopted children of Army Personnel at least 5 years prior to seeking admission, are eligible to apply for admission. (iii) Child in receipt of family pension due to death of both parents, one of whom was regular/retired Army person. (iv) Children of widows of army personnel who are born as a result of second marriage with Non Army persons would Not be eligible. 4.2 Eligibility Criteria for children of Punjab Residents Civil Category. To claim the benefit of Punjab Resident Civil Category, the applicants must indicate in the application form whether he/she belongs to Punjab Resident Civil Category entitling him/her to be considered in the category. 4.2 Eligibility Criteria for children of Punjab Residents Civil Category. To claim the benefit of Punjab Resident Civil Category, the applicants must indicate in the application form whether he/she belongs to Punjab Resident Civil Category entitling him/her to be considered in the category. In this regard, the selected wait listed candidates, at the time of interview, are required to produce the following documents (refer to Annexure II of the prospectus), failing which, they shall not be entitled to the benefit of Punjab Resident Civil Category :- (a) Affidavit regarding citizen of India and to the effect that they or their children/wards have not obtained the benefit of residence in any other State. (See form of the affidavit in Annexure II), and (b) Certificate of residence from the respective competent authority , referred to in Annexure II of the prospectus. xxx xxx xxx xxx xxx xxx xxx xxx 5. ONUS OF ENSURING ELIGIBILITY LIES WITH THE CANDIDATE It is the responsibility of the candidate to ensure that he/she possesses the requisite minimum qualification and is eligible in all other respects as per the requirements given in this Prospectus of appearing in the Entrance Test. The fact that the candidate has been issued the Admit Card and permitted to appear in the Entrance Test, does not imply final acceptance of his/her eligibility. The final acceptance of eligibility will rest with the AIL and the Punjabi University, Patiala in all cases and this will be decided at the time of admission and later during scrutiny of the certificate by the University." 5. Mr. Goyal, learned Sr. Counsel appearing for the petitioner has submitted that the AIL has been established with the objective to give higher education to the wards of Defence Personnel. Clause 4.1 (B) of the Prospectus is contrary to Clause 1.6 of the Prospectus which clearly states the aims and objectives for setting up of AIL. The objective "to impart high quality legal education and professional training to wards of defence prsonnel and civilians leading to B.A., LL.B. Degree. The term "defence personnel" means "all persons retired from the Armed Forces.". Even according to the Law Lexicon, the definition of the armed forces includes the three wings, namely, Army, Navy and Air Force. The objective "to impart high quality legal education and professional training to wards of defence prsonnel and civilians leading to B.A., LL.B. Degree. The term "defence personnel" means "all persons retired from the Armed Forces.". Even according to the Law Lexicon, the definition of the armed forces includes the three wings, namely, Army, Navy and Air Force. Father of the petitioner having retired from the Air Force could not have been excluded from the definition of the parents whose wards would be eligible for admission against the seats reserved for wards of Army Personnel. The respondents-Institute have arbitrarily restricted the admission only to the wards of Army Personnel. The eligibility criteria given in Clause 4.1 of the Prospectus is contrary to the aims and objectives set out in Clause 1.6 of the Prospectus. Even otherwise, the petitioner would have been eligible for getting admission under clause 4.1 (H). Father of the petitioner is Ex-Serviceman and is drawing regular pension. Necessary certificates were also shown to the respondents-Institute. It is further submitted by Mr. Goyal that the action of the respondents is even otherwise discriminatory. Out of the total number of 80 seats, 64 seats have been reserved for the Army personnel. 12 and 4 seats have been reserved for the Punjab Residents and All India General Category, respectively. This preference in favour of Punjab Residents and All India General Category is discriminatory to the members of the Air Force and Navy personnel. Children of serving and retired Air Force and Navy personnel could not be excluded from admission when seats are served even for civilians. The college is meant only for defence personnel. The respondents have, therefore, acted arbitrarily in not considering the claim of the petitioner against 16 seats reserved for civilans. 6. Learned counsel for the respondents-Institute, on the other hand, submitted, that AIL has been set up primarily to impart high quality legal education to the wards of Army Personnel. Therefor, 80% of the seats have been reserved for the wards of Army and Ex Army personnel. The petitioner had applied under Clause 4.1 (B) of the Prospectus. He had sumitted a forged certificate in support of the application. The petitioner could not have applied against Clause 4.1 (B) as it is limited only to Army personnel. Therefor, 80% of the seats have been reserved for the wards of Army and Ex Army personnel. The petitioner had applied under Clause 4.1 (B) of the Prospectus. He had sumitted a forged certificate in support of the application. The petitioner could not have applied against Clause 4.1 (B) as it is limited only to Army personnel. In fact, the certificate could not have been issued to the father of the petitioner who is an Ex-Air Force Officer. It is submitted that Clause 4.1 (H) applies only to Ex-Army personnel who have taken retirement after 10 years of service. The expression "Ex-serviceman" used in Clause 4.1 (H) of the Prospectus has to be read in the context of the main provision contained in Clause 4.1 which provides the eligibility criteria for wards of Army personnel. 7. We have considered the submissions made by the learned counsel for the parties. A perusal of the various clauses reproduced above would show that AIL has been set up, inter alia with the object of imparting high level education and professional training to wards of defence personnel and civilians leading to B.A.,/LL.B. Degree. The emphasis is to provide educational infrastructure to the wards of Army personnel. A persual of Clause 4 shows that out of a total of 80 seats, a major chunk of 64 seats has been reserved for wards of Army Personnel. Clause 4.1 of the Prospectus again provides eligibility criteria for wards of Army personnel. Clause 4.1 (A and B) deal with wards of serving and retired Army Personnel. Throughout the clause there is no mention of the term "defence personnel". In fact, the intention of the respondents-Institute, becomes crystal clear in clause 4.1 (D) of the Prospectus. This Clause makes wards of those Medical Officers presently serving with Indian Navy and Indian Air Force eligible who have served with the Army for more than 10 years. Clearly, therefore, the reservation is meant for the wards of Army Personnel. It cannot be extended to include the wards of Air Force or Navy personnel . Even the expression "Ex-serviceman" and Ex-SS Officer would have to be given a restricted meaning confined to the wards of Ex-Army Personnel. The petitioner could not claim admission under Clause 4.1 (H) of the Prospectus as he had specifically applied under Clause 4.1 (B) of the Prospectus. Even the expression "Ex-serviceman" and Ex-SS Officer would have to be given a restricted meaning confined to the wards of Ex-Army Personnel. The petitioner could not claim admission under Clause 4.1 (H) of the Prospectus as he had specifically applied under Clause 4.1 (B) of the Prospectus. It is made clear in Clause 4.1 of the Prospectus itself that the applicant must indicate in the application form the category in which the application is made. The candidate has also to submit the necessary certificate which is relevant for the category. It is not disputed that the petitioner submitted the certificate which was relevant under Clause 4.1 (B). A perusal of the specimen of the certificate clearly shows that it is specifically printed for Category 4. 1 (B) of the Prospectus. The certificate clearly mentions that the candidate is the son/daughter of Ex-Army No. ....... Rank .......... The Certificate further requires the Army Officer to state Regt./Corps in which he had served. Against this Category, father of the petitioner had mentioned Indian Air Force Police. This category is not known to Certificate B. From the above it becomes evident that the petitioner could not have been considered for admission against Category 4.1 (H). We also find no merit in the submission of Mr. Goyal that no reservation could have been made in favour of the civilians. It is a settled proposition of law that the reservations for any particular category have to be made by the concerned authorities. In order to be eligible or to claim reservation, a candidate would have to fall within the same category. The petitioner is claiming to be the ward of retired Air Force Officer. Therefore, he cannot complain of discrimination when certain seats are reserved for civilians, residents of Punjab or belonging to All India General Category. 8. In view of the above, we find no merit in the writ petition and the same is hereby dismissed. No costs.