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2004 DIGILAW 170 (CHH)

Dhanaram Singrole v. State of Chhattisgarh

2004-09-20

L.C.BHADOO

body2004
ORDER 1. By this writ petition under Article 226 & 227 of the Constitution of India the petitioners has questioned the legality, propriety and correctness of arbitrary action of respondent No.3 whereby the request of the petitioners for correction in the application form for Pre-Medical Test (PMT) was not allowed, as a result of which petitioner No.2 has not been considered for admission in the 1st year of MBBS course in the category of Freedom Fighters. 2. Petitioners' case is that petitioner No.2 being qualified to appear in the Pre-Medical Test, 2004 (PMT) conducted by respondent Nos.2 & 3 applied for the same and his application form was also accepted. For conducting PMT examination in the State of Chhattisgarh for Government Medical College, Raipur & Dental College, Rajnandgaon rules known as ` PMT Examination Admission Rules, 2004' has been issued. As per sub-rule (5) of Rule 4; 3% horizontal reservation was made for the freedom fighters. Explanation 3 of sub-rule (5) envisages that the son, daughter, grandson & granddaughter of a freedom fighter will be entitled to take benefit of the said reservation. Explanation 4 further lays down that `freedom fighter' means a person whose name is registered in the list of freedom fighters kept in the office of the Collector of the District concerned and under this category only those candidates shall be eligible who fulfill the qualification prescribed under Rule 3.2 with respect to domicile. A candidate seeking admission under this category has to produce a certificate issued by the Collector of the district concerned in the prescribed format. Petitioner No.2 appeared in the examination as a general category candidate which was held from 04.6.2004 to 06.06.2004 and result of which was declared on 28.6.2004. In the said examination petitioner No.2 secured 151 rank in the merit list, as he obtained 549 marks out of total marks. Petitioners' further case is that immediately after 2- 3 days from submitting the application form, he realized the mistake of having not filled the clause of freedom fighter in the application form, accordingly, petitioners rushed to the office of respondent No.3-Board of Secondary Education, Raipur on 30.4.2004 at 3 p.m. and made an application form along with certificate to the Secretary of respondent No.3-Board for making correction in the application form. Copy of the application for correction, copy of the freedom fighter certificate and copy of the receipt showing deposit of the application are Annexures P-7, P-8 & P-9 to the writ petition. As the bank time was over, therefore, the petitioners could not prepare a bank draft, but they told the Deputy Secretary namely Shri Goel that they are ready and willing to deposit the prescribed fee, then he referred the matter to Shri Borkar, Coordinator, but the deposit could not be made. However, petitioners were given assurance that their application would be considered strictly in accordance with law. Meanwhile, examination was conducted and immediately, after the examination, the petitioners wrote a letter-dated 07.07.2004 to respondent No.3, copy of which along with postal receipt is Annexure P-12 to the writ petition. On receiving no response from the side of the respondent No.3 Board, the petitioners again wrote a letter on 16.7.2004, thereafter again wrote a letter on 06.8.2004. But respondents could not give any proper consideration to the applications made by the petitioners and ultimately respondent No.4 issued call letter dated 14.8.2004 for counseling on 02.09.2004 showing petitioner No.2 as a general candidate without making any reference to his applications and his rank has been shown as 152. Copy of the recent certificate dated 7.7.2004 is marked as Annexure P-16. Therefore, the action of respondent No.3 in not considering petitioner No.2 as a candidate of freedom fighter category is arbitrary. Ultimately, it has been prayed that respondent No.3 be directed to consider the application for correction filed by the petitioners in accordance with the law and direct respondent No.3 to include the name of the petitioner No.2 in the list of freedom fighters quota. 3. An application for dismissing the writ petition has been filed on behalf of respondent No.3 in which it has been mentioned that perusal of Annexures P-7 & P-9 reveals that even the certificate was obtained by the petitioners on 19.07.1988 but he has not filled up the same, therefore, sought correction vide Annexure P-8. It is further mentioned in the application that as per Clause No.1.5.2 of Annexure P-1-A, the petitioner No.2 was required to furnish a demand draft of Rs.100/- along with the application for correction, but same was not done, therefore, correction was not made. It is further mentioned in the application that as per Clause No.1.5.2 of Annexure P-1-A, the petitioner No.2 was required to furnish a demand draft of Rs.100/- along with the application for correction, but same was not done, therefore, correction was not made. It has also been mentioned that freedom fighter certificate (Annexure P-16) was issued on 07.07.2004, therefore, it could not be filed upto 30.04.2004. Therefore, the petition of the petitioners be dismissed. 4. Return has been filed on behalf of respondent No.4 in which it has been mentioned that Rules of Admission prescribed reservation for freedom furthers quota only for those candidates who are either the son and daughter of the freedom fighters or son's son and son's daughter of a freedom fighters. The Rules have been framed in Hindi and use of word "Poutra" clearly signifies without any iota of doubt that it is meant only for son & daughter, son's son & son's daughter of a freedom fighter. By necessary implication, it excludes all other relatives of freedom fighter, which would incidentally include daughter's son/daughter's daughter. Similar is the position contained in the rules of admission framed by respondent No.4 for its institution which were published in Hindi as well as in English also, copy of which is Annexure R-4/1 to the return filed by respondent No.4. The explanatory part of the Rules framed clearly shows that in the event of any doubt / discrepancy, Hindi version shall be applicable. In the instant rules also the benefit of quota freedom fighter is confined to sons and daughters of a freedom fighter and son's son and son's daughter of a freedom fighter. The petitioner have failed to produce the relevant eligibility certificate as required under the rules of admission framed by the Board of Secondary Education as also by respondent No.4. The petition is also liable to be dismissed on the ground of delay, waiver and acquiescence. On petitioners' own admission, petitioner No.2 had applied in the entrance examination conducted by the Secondary Board of Education for admission to Government Medical College, Raipur and Dental College at Rajnandgaon and at that time the petitioner No.2 did not submit any certificate as required under the rules framed by the Board, if the petitioners made any representation, all this exercise by the petitioners was in vain. If the petitioners had any such grievance, petitioners ought to have immediately approached the appropriate Forum available to him under the law for redressal of the grievances. It is an admitted fact that petitioner No.2 neither filed any petition against the respondent Board nor did he seek any relief for admission against freedom fighter category in Raipur Medical College and Rajnandgaon Dental College. Having not claimed any admission in Raipur Medical College or Rajnandgaon Dental College for which he had originally submitted an application form and appeared in the PMT examination conducted by the respondent Board, the petitioners waived all their rights, if any, and having not claimed any relief from any forum available to them under the law. Even at the time when respondent No.4 had initially published its programme for counseling which was scheduled to be held on 2nd and 3rd September 2004, no such petition was filed. However, since the counseling was to be re- scheduled in view of the judicial intervention in another writ petition, at this stage now, petitioners are coming forward to agitate a belated and waived right. Now the counseling is scheduled to be held on 17th & 18th September 2004 and there is only one payment seat against freedom fighter category. Respondent No.4 borrowed list prepared by the respondent Board for making admission in the Medical College run by it. All kinds of enquiry etc. with regard to claim of all the categories have already been made by the respondent Board and respondent No.4 is to strictly go by the merit list as made available to it by the Director of the Medical Education and when the counseling is to commence on 17.9.2004 & 18.9.2004, it is practically not possible to allow any change, alteration or modification in the merit list as a whole relating to different categories. 5. Affidavit of petitioner No.1 has been filed in which it has been mentioned that in the year 1998 Pre-Medical Test conducted by Vy. Shikshan Mandal Madhya Pradesh, Bhopal one Shri Tushar Dani, who is son of Smt. Madhu Devi Agarwal daughter of a freedom fighter Shri J.P. Agarwal, was admitted in the Medical College, Raipur against the freedom fighter quota. One Freedom Fighter Shri Hari Prem Baghel's second daughter Smt.Pramila Verma son Mr. Shikshan Mandal Madhya Pradesh, Bhopal one Shri Tushar Dani, who is son of Smt. Madhu Devi Agarwal daughter of a freedom fighter Shri J.P. Agarwal, was admitted in the Medical College, Raipur against the freedom fighter quota. One Freedom Fighter Shri Hari Prem Baghel's second daughter Smt.Pramila Verma son Mr. Paramendra Kumar Verma was admitted in Government Engineering College, Jagdalpur in the year 1995 against the freedom fighter quota with the similar rules and because petitioner No.2 is also daughter's son of Shri Hari Prem Baghel, therefore he is also entitled for benefit of reservation. 6. I have heard Shri Sanjay K Agarwal, counsel for the petitioners, Shri Sanjay S Agarwal, Govt. Adv. For respondent No.1 & 2, Shri H.B. Agarwal, counsel for respondent No.3 & Shri Manindra Shrivastava, counsel for respondent No.4. 7. Now coming to the question that the petitioners approached respondent No.3 for correction in the application form on 30.04.2004 and they were prepared to deposit Rs.100/- as per rules but they were not allowed and thereafter, they wrote several letters but to no avail. In this connection as mentioned above, Rule 1.5.2 issued by respondent No.3 regarding PMT Examination, 2004 envisages that "correction in the incomplete and defective application form was permitted upto 30.04.2004 and it was made compulsory that the application for correction in application form must be submitted in the Board latest by 30.04.2004 along with a non-refundable account payee bank draft of Rs.100/-". Xerox copy of the application form is Annexure P-4, which was kept by the petitioner No.2 along with him shows that that it was filled on 3.4.2004 by the petitioner and in Para 5.5 of the petition it has been mentioned that petitioner No.2 immediately after 2-3 days realized the mistake of having not filled the clause of freedom fighter in the application form. Therefore, in view of the above it is clear that petitioner No.2 realized his mistake on 5th or 6th of June 2004 then why he had submitted the application for correction in the application form on 30.04.2004, same has not been explained in the petition. Therefore, in view of the above it is clear that petitioner No.2 realized his mistake on 5th or 6th of June 2004 then why he had submitted the application for correction in the application form on 30.04.2004, same has not been explained in the petition. When petitioner No.2 had realized his mistake on 5th or 6th of June 2004 even then around 24-25 days time was available with him, he could have immediately submitted the application for correction along with demand draft of Rs.100/-, therefore, the contention of the petitioners that they approached respondent No.3 on the last day about 3 p.m. that to without a demand draft is not believable. The petitioners have been failed to establish this fact. This statement of the petitioners cannot be believed for the reason that the necessary certificate was issued by the Collector, Raipur to him on 07.07.2004, therefore, the petitioners were not in possession even of the necessary certificate, which was required to be submitted along with the application form. Even otherwise, when rule prescribes that application form for correction is required to be submitted by 30.4.2004 along with a demand draft of Rs.100/-, any lapse or short coming in this regard on the part of the petitioners cannot be made ground for any action particularly legal action. It was mandatory that form was to be submitted along with a draft of Rs.100/-. 8. Now coming to the question raised by respondent No.4 that since petitioner No.2 is not the son's son of a freedom fighter, therefore, he is not entitled for the benefit. For this purpose learned counsel argued that the Rules are published in Hindi and as per legal glossary Poutra means son's son and daughter's son is called Dohitra. 8. Now coming to the question raised by respondent No.4 that since petitioner No.2 is not the son's son of a freedom fighter, therefore, he is not entitled for the benefit. For this purpose learned counsel argued that the Rules are published in Hindi and as per legal glossary Poutra means son's son and daughter's son is called Dohitra. If we look into the historical background for making reservation for the children and grandchildren of a freedom fighter, it shows that this reservation was made for the reason that the freedom fighters who fought for the independence of the country and killed through Government agency or hanged in connection with the freedom movement or were permanently disabled for earning his livelihood as a result of an injury by a Government agency in connection with the freedom movement during the period from 1919 to 1946, as they sacrificed their lives for the freedom of the country and they were engaged in freedom movement, therefore, they were not able to look after their children, as such this reservation was made to mark their sacrifice and contribution for liberation of the country from colonial rule. This reflects from perusal of the sub-rule (3)(b) of Rule 6 of M.P. Pre-Medical Examination, 1973. It has further been envisaged in this Rule that in order to obtain benefit of freedom fighter category a certificate issued by the Collector of the district concerned is required to be furnished certifying that candidates parent/grand parent is/was a freedom fighter and his/her name is in the register of freedom fighters maintained in the District. It is further mentioned in the rules that the decision of the Government whether the particular person falls under the freedom fighters category or not will be final. Perusal of Webster's 3rd Law International Dictionary, Black's Law Dictionary, Cambridge International Dictionary of English shows that grandson means ` the son of a person's son's or daughter's. As per Webster's Dictionary grandchild means a son's or daughter's child. Therefore, as per English meaning a son or daughter of a daughter is also included in the category of grandchild, as per Explanation-4 of sub-rule (5) of Rule 4, as has been mentioned above, prescribes that in this connection a certificate will be issued by the Collector and that certificate is to be treated as final. Therefore, as per English meaning a son or daughter of a daughter is also included in the category of grandchild, as per Explanation-4 of sub-rule (5) of Rule 4, as has been mentioned above, prescribes that in this connection a certificate will be issued by the Collector and that certificate is to be treated as final. In the present case the Collector concerned has issued a certificate in favour of the petitioner No.2 (Annexure P-16) entitling him to avail benefit under the freedom fighters quota, therefore, respondent No.4 is not entitled to challenge this aspect of the case. It should be left to the Government to decide which children of freedom fighter should be entitled for benefit. Even otherwise the principle behind reservation is that the children and grandchildren of a freedom fighter should be given reservation, then the children of the daughter of a freedom fighter cannot be excluded on any principle and one way, if it is allowed so then that decision would be gender biased, which cannot be permitted. On account of involvement of father of a daughter in the freedom movement, daughter had equally suffered or incurred disabilities as the son, therefore, on this ground also the objection raised by learned counsel for respondent No.4 is not tenable. 9. The last point raised by Shri Manindra Shrivastava, counsel for respondent No.4 is that the petition suffers from delay and latches. To a great extent this argument of learned counsel for respondent No.4 looking to the facts and circumstances of the case cannot be said to be without force for the reason that the application form was filled by the petitioner No.2 on 03.04.2004 and immediately after 2-3 days he came to know about the defect that he has not filled the reservation category of freedom fighter, but he remain silent and only on 30.04.2004, which was last day for correction in the form they woke up from the slumber, when the petitioners were not allowed to rectify the defect in the form, therefore, there was no other remedy available with the petitioners but to resort to recourse of law. In the month of June 2004 the petitioner No.2 appeared in the said examination, even thereafter, he remained silent, even when counseling for admission to Government Medical College, Raipur and Dental College at Rajnandgaon was conducted he remained silent, he did not object and now when respondent No.4 started admissions in the MBBS course that too after borrowing remaining list of candidates of the examination which was conducted for the Government Medical College, Raipur and Dental College at Rajnandgaon. The petitioners have approached this Court that too after the date of re-scheduled counselling, as in the first instance when the counseling was upto 1st & 2nd September 2004 the petitioners have not approached this Court and now they have filed this writ petition, which in my opinion cannot be allowed on the ground of delay and latches, for the reasons that the other candidates who are in the reservation category of freedom fighters have accrued right, they have been called for counseling in this category and today + of the counseling has already been conducted and remaining counseling will be conducted tomorrow, therefore, if the petition of the petitioners is allowed then that will affect the interest of those candidates who have already accrued right, they will put to hardship and inconvenience and that will also cause injustice to them, therefore, petitioner No.2 in the circumstances cannot be permitted to agitate his grievance at a belated stage that too at the cost of those candidates who have accrued right in their favour. 10. The question raised that so far the petitioners were sleeping on their right when the interest has been created in favour of other freedom fighters category students then they have better claim for these seats in comparison to the petitioners on the ground of delay and latches, apart from that as has been held by the Hon'ble Supreme Court in the matter of State of Madhya Pradesh Vs. Nandlal reported in AIR 1987 SC 251 that " writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. Nandlal reported in AIR 1987 SC 251 that " writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction". The Hon'ble Supreme Court further held that "when the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weights with the High Court in deciding whether or not to exercise such jurisdiction". As has been mentioned above that the right has already been created in favour of the freedom fighters candidates, therefore, on this ground also the petition of the petitioners deserve to be dismissed. 11. It is not out of place to mention here that in the matter of admissions in the medical colleges in view of the judgment of the Hon'ble Apex Court in Madhu Singh's case, Medical Council of India has issued guidelines and according to those guidelines after a particular date no admission can be given and in this case half of the counseling has already been conducted today and half of the counseling is to be conducted tomorrow and admissions are to be over within one week. In such a situation also interference with the process of admission at a delayed stage where the petitioners were not alive about their legal rights cannot be allowed, therefore, I am of the opinion that the petitioners are not entitled for invoking writ jurisdiction. 12. In the result, for the aforesaid reasons, the petition of petitioners deserves to be dismissed and accordingly, it is dismissed.