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2005 DIGILAW 382 (HP)

ASHISH AWASTHI v. STATE OF H. P.

2005-10-07

V.M.JAIN

body2005
JUDGEMENT Per V.M. Jain, J.: The present writ petition under Articles 226/227 of the Constitution of India has been filed in this Court challenging the action of the respondents, whereby the petitioner had been denied admission to the MBBS/BDS course, with the prayer to issue appropriate writ or direction to the respondents. 2. In the petition, it was alleged that the petitioner is a resident of Himachal Pradesh and that the father of the petitioner was appointed as a Cashier in the State Bank of India at Surangani Branch in District Chamba in the year 1983 and he is still working at Surangani till date. It was further alleged that Surangani, District Chamba has been declared as backward area by the State of Himachal Pradesh. It was further alleged that the petitioner was born in the year 1986 and at that time, the father of the petitioner was working at Surangani, District Chamba. It was alleged that the petitioner was brought up in the backward area i.e. Surangani like any other resident of a backward area and had faced all the hardships/difficulties and handicaps in the absence of basic amenities available to any person residing in a normal area. It was alleged that the petitioner did his entire education form Class-1 upto Class 10+2 i.e. primary, middle, matriculation and secondary education form B.S.P. Central School, Surangani, District Chamba (H.P.). 3. It was alleged that the Himachal Pradesh University had issued Advocate(s): prospectus for 2004-2005 Sessions for the Pre-Medial Entrance, Test, copy Annexure P-5 and as per clause 2.3. of the prosecutors, three seats in Medical College, Shimla, 2 sets in Medical College, Shimla 2 eats in Medial College Tanda and one seat in Dental College, Shimla, were reserved for candidates belonging to backward areas. It was further alleged that in clause 2.5 of the prospectus it had been notified that the seat reserved for backward areas would be filled u in the manner prescribed therein. It was further alleged that under Clauses 2.17 of the said prospectus, definition of bonafide residents of Himachal Pradesh had been given. It was further alleged that since the petitioner was residing at Surangani, District Chamba, right form his birth, he was issued a certificate with regard to his belonging to a backward area by the competent authority and similarly he was issued Advocate(s): certificate of bonafide Himachal, copies Annexure P-6 and P-7. It was further alleged that since the petitioner was residing at Surangani, District Chamba, right form his birth, he was issued a certificate with regard to his belonging to a backward area by the competent authority and similarly he was issued Advocate(s): certificate of bonafide Himachal, copies Annexure P-6 and P-7. It was further alleged that the petitioner had submitted his application form to the University well within time seeking admission to the aforesaid course and was issued Roll No. 14730 and he also appeared in the Entrance Test on 26.5.2004 and secured 107 out of 150 marks. Subsequently, the marks secured by the petitioner were reviewed and the marks of the petitioner were increased from 107 to 109. It was further alleged that the petitioner was called for Counselling before the Counselling Committee on 17.7.2004 along with original certificates etc. It was alleged that the petitioner appeared before the Counselling Committee and as per the merit list, his position was 6th and he reasonably expected to get admission against one of the six seats reserved for candidates belonging to backward areas. It was alleged that the petitioner was told by the Counseling Committee that he would be informed about the outcome of the Counselling by post. It was further alleged that sine the last date for admission was 30.9.2004 and the petitioner had not received any intimation form the University regarding his admission, he made enquiries form the University and came to know that the candidature of the petitioner had been ignored and that respondents No.4 and 5, who had secured lesser marks, had succeeded in getting admission at the cost of the petitioner. 4. In the petition, it was further alleged by the petitioner that the petitioner was verbally informed by the University authorities that his candidature had been rejected for the reason that even though his father was working in the backward area of Surangani since 1983, yet the being a resident of Palampur, District Kangra, he could not be considered to be a resident of a backward area. It was alleged that I for this reason only, his candidature stood rejected even last time when the petitioner competed for the said examination. It was further alleged that no written communication had been received by the petitioner to this effect of from the respondent- University. It was alleged that I for this reason only, his candidature stood rejected even last time when the petitioner competed for the said examination. It was further alleged that no written communication had been received by the petitioner to this effect of from the respondent- University. It was alleged that the respondents had acted in an illegal and arbitrary manner without taking into consideration the fact that the petitioner had submitted necessary certificates to show that he belonged to a backward area and that he had his father were residing at Surangani since 1983 and that Surangani had been declared a backward area of the State. It was alleged that the petitioner had done his schooling form the backward area i.e. from Suragani and as such, for all intents and purposes, he belonged to that area within the definition of clauses 2.5 and 2.17 of the prospectus issued by the respondent -University. In the amended writ petition, it was future alleged that the Sub Divisional Magistrate vide order dated 21.9.2004 had modified the certificate of bonafide resident of backward area issued, in favour of the petitioner and instead of the words bonafide resident, he was shown as domicile of backward area. It was further alleged that the Sub Divisional Magistrate had modified the certificate by wrongly applying the judgment passed by this Court in the case of Alka Sharma vs. HP. University & others. I was further alleged that the judgment passed in Alka Sharmas case would not apply to the case of the petitioner. Copy of the order passed by the Sub Divisional Magistrate on 21.9.2004 was attached as Annexure P-11 with the amended writ petition. It was further alleged that inspite of fulfilling all the conditions for being admitted against a seat reserved for the candidates belonging to the backward areas, the petitioner had been ignored. It was accordingly prayed that the respondents be directed to grant admission to the petitioner against a seat reserved for candidates belonging to backward areas in the M.B.B.S/B.D.S. Course for the academic session of 2004-05 and the admissions given to the private respondents be set aside. It was also prayed that the impugned order dated 21.9.2004 passed by the Sub Divisional Magistrate be also quashed and set aside. 5. The writ petition was contested by the respondents by filing separate written statements. Short reply on behalf of respondent No.3 namely UP. It was also prayed that the impugned order dated 21.9.2004 passed by the Sub Divisional Magistrate be also quashed and set aside. 5. The writ petition was contested by the respondents by filing separate written statements. Short reply on behalf of respondent No.3 namely UP. University was filed, to the effect that in the entrance test, the petitioner was allowed to appear provisionally subject to final eligibility to be determined by the Counselling Committee at the time of admission, as provided in Clause 6.3. of the prospectus. It was alleged that the petitioner had attended the Counselling on 17.7.2004 and as per the documents produced by him before the Counselling committee, he was not found eligible as per the recommendations of the Counseling Committee on the ground that even though he had been certified as a domicile of village Surangani, District Chamba and residing there for a period of 15 years and had his schooling from the backward area, but as per the information supplied by the petitioner orally at the time of Counselling, he was a bonafide resident of Kangra District It was found that under Clause 2.5 (a) of the prospectus the candidate belonging to the backward area must be a bonafide of the particular area and since the petitioner did not belong to that area, his candidature was not accepted. It was alleged that during Counselling the petitioner was informed that he was not eligible. It was further alleged that the petitioner was not really bonafide resident of village Surangani, which had been notified as a backward area of State of Himachal Pradesh, rather he belonged to District Kangra and as such, the claim of the petitioner on a backward area seat would not tenable. It was further alleged that the petitioner could not be given the benefit of reservation under backward area category, on the basis of judgment delivered by this Court in CMP No.635 of 1998 titled Miss Alka Kumari vs. H.P. University and another, copy of which was annexed as Annexure R-3/B. It was alleged that as per the said judgment any person who is not a native of a notified backward area or had not permanently settled there, could not be given the benefit of reservation of a backward area. Subsequently, a detailed para wise reply was filed on behalf of respondent No.3 H.P. University taking up similar pleas. 6. Subsequently, a detailed para wise reply was filed on behalf of respondent No.3 H.P. University taking up similar pleas. 6. In the short reply filed on behalf of respondents No.1 and 2, i.e. the State of Himachal Pradesh and Director Health, it was alleged that the merit list was prepared by the respondent H.P. University and only those students were admitted in the medical/dental colleges who were recommended by the HP. University in orders of merit in different courses. It was alleged that since the petitioner did not being to a backward area and was claiming to be a resident of backward area on the basis of residence for the last 15 years, the claim of the petitioner was not accepted by the Counselling Committee and it was found that he was not a bonafide resident of any backward area and as such, the benefit of reservation of backward area category could not be given to him in view of the judgment passed by this Court in Alka Kumaris case. 7. In the Short reply filed on behalf of respondents No. 1 and 2 to the amended writ petition, it was further alleged that the Sub Divisional Magistrate vide order dated 21.9.2004 had modified the backward area certificate issued to the petitioner keeping in view the judgment passed by this Court in Alka Kumaris case. 8. A short affidavit on behalf of Sub Divisional Magistrate was separately filed to the effect that on receipt of a complaint, an inquiry was conducted and during inquiry it was revealed that the petitioner was a permanent resident of Tehsil Palampur, District Kangra and was residing with his father at Village Surangani where his father was serving in the State Bank of India Since 1983. It was alleged that in view of the facts revealed during inquiry the backward area certificate, which was issued to the petitioner, was ordered to be modified vide order dated 21.9.2004. It was further alleged that the petitioner could not claim himself to be a bonafide resident of a backward area for the purposes of seeking admission against reserved quota for backward areas. 9. Separate replies on behalf of private respondents No.4 to 6 were also filed taking up similar pleas. 10. I have heard the learned counsel for the parities and have gone through the records carefully. 11. 9. Separate replies on behalf of private respondents No.4 to 6 were also filed taking up similar pleas. 10. I have heard the learned counsel for the parities and have gone through the records carefully. 11. The leaned counsel appearing for the writ petitioner submitted before me that the father of the petitioner was posted at Village Surangani in the State Bank of India in the year 1983 and since then he was residing there. It was further submitted that during his posting at Village Surangani, the petitioner was born and the petitioner had his bringing up at Village Surangani and had his entire education at Village Surangani from class-1 to Class 12 and considering all these facts, it would be clear that the petitioner was a bonafide resident of village Surangani, which was declared as a backward area and as such he was entitled to be considered against the seats reserved for candidates, who were bonafide residents of a backward area, since the petitioner had passed all the school examination i.e. primary, middle, matric and +2 from the school located at Village Surangani, which was declared a backward area. It was further submitted that the law laid down by a Division Bench of this Court in Alka Kumaris case would not go against the petitioner since the petitioner was a bonafide resident of Village Surangani, which was declared a backward area. 12. On the other hand, the learned counsel for the respondents submitted before me that the petitioner had rightly been denied the admission to the MBBS/BDS Course against the seats reserved for the students from backward areas since the petitioner could not be termed to be a candidate belonging to a backward area, keeping in view clause 2.5 of the prospectus and the Division Bench judgment of this Court in the case of Miss. Alka Kumari Vs. H. P. University and others 1999 (1) Shimla Law Cases 269 (DB). 13. After hearing the learned counsel for the parties and perusing the record, in my opinion, there is no merit in this writ petition and the same is liable to be dismissed. 14. Copy of the prospectus which was issued by the Himachal Pradesh University for 2004-05 Section for pre-medical entrance test, has been attached as Annexure P-5 with the petition. After hearing the learned counsel for the parties and perusing the record, in my opinion, there is no merit in this writ petition and the same is liable to be dismissed. 14. Copy of the prospectus which was issued by the Himachal Pradesh University for 2004-05 Section for pre-medical entrance test, has been attached as Annexure P-5 with the petition. Clauses 2.5(a) and 2.17(i) of the said prospectus read as under: "2.5 BACKWARD AREA SEATS IN MBBS AND BDS reserved for candidates belonging to backward areas as notified by the HP. Govt. from time to time in the following manner: (a) Candidates belonging to the backward area must be bonafide of that particular Backward Area and must have passed at least two examinations i.e. primary/middle/matric/10+2 from the schools located in the backward area. (b) xx xx (c) xx xx 2.17 Definition of bonafide residents of Himachal Pradesh: (I)A bonafide Himachal is a person who has permanent home in Himachal Pradesh and includes a person who has been residing in Himachal Pradesh for a period no less than 15 years or a person who has permanent home in Himachal Pradesh but on account of his occupation he is living outside Himachal Pradesh." 15. From a perusal of the definition of backward Area, as given in clause 2.5(a) of the prospectus, it would be clear that only those candidates could be considered for the seats reserved for Backward areas, who belong to other backward area and must bonafide resident of that particular area and must have passed at least two examinations form the schools located in the Backward Area. In the present case, the petitioner may be a bonafide Himachal, as defined includes 2.17(1) of the prospectus, since his father is originally a resident of Tehsil Palampur, Distt. Kangra and is residing in Himachal Pradesh for the last more than 15 years, . yet the question that comes up for consideration is as to whether the petitioner j could also be treated as a candidate belonging to a backward area i.e. Surangani, j being a bonafide resident of that particular area. 16. The point is not res integra. For admission to MBBS/BDS course for the session 1998-99, prospectus was issued by the H.P. University. Some seats were reserved for candidates belonging to backward areas, as declared by the HP. Government. 16. The point is not res integra. For admission to MBBS/BDS course for the session 1998-99, prospectus was issued by the H.P. University. Some seats were reserved for candidates belonging to backward areas, as declared by the HP. Government. In the following criteria was given in the prospectus, to be satisfied to claim benefit of such reservation in respect of the backward category: "Backward areas seats in MBBS and BDS reserved for candidates belonging to backward area as notified by the HP. Govt. from time to time in the following manner - (a) Candidates who have passed at least two examinations i.e. Primary/Middle/High/+2 form the schools located in the backward area. £- (b) xx xx xx (c) xx xx xx" 17. Ms. Alka Kumari was not considered for the seats reserved for the backward areas on the ground that she did not fulfill the required criteria. She filled Civil Writ petition No. 635 of 1998 in this Court. In the written statement, the University had taken the plea that the petitioner had not submitted a certificate form the competent authority that she was an ordinary resident of a notified backward area and the mere fact that she had passed Middle and Matriculation examinations form the schools located in notified backward area would not mean that she was hailing form the notified backward area. The H.P. University also took up the plea that the candidates claiming reservation for backward areas must hail or come from backward areas. After hearing both sides and perusing the record, the writ petition filed by Ms. Alka Kumari, petitioner was dismissed by a Division Bench of this Court, vide judgment dated 20.11.1998, reported as 1999 (1) Shimla Law Cases 260. It was contended on behalf of the writ petitioner before the Division Bench that it was enough if a candidate had passed at least two examinations form the schools located in the backward area and the candidate need not be a permanent resident or hailing form such place to get the benefit under the reserved category in respect of candidates from backward areas. The Division Bench of this Court, while dismissing the writ petition of the write petitioner, repelled the aforesaid contention made on behalf of the writ petitioner and observed as under "In our view the submissions on behalf of the petitioner not only purports to over simplify the matter but if countenanced will be counter productive in result and defeat the very object and purpose of the reservation. The candidates from backward area should mean those who are either hailing or permanently settled or at least have the intention to reside permanently in the place and have permanent residence in such area notified form time to time by the Government to be backward area. The object of making a further classification among candidates form backward area seem to be to give a preference, among such candidates from backward area, to those who really undergone studies also in schools located in the backward area for the obvious reason that such persons suffer a double dis-advantage and it is only keeping in view the same a candidate simplicitor hailing from a backward area is classified for less favourable treatment than the candidate who not only hails forma backward area but in addition thereto has also studied and passed two examinations in schools located in the backward area. Otherwise, if the object was to have two categories of candidates from backward area and treating one less favourably than the other, the very classification would be seriously vulnerable for a challenge on the ground of discrimination. The contention of the learned counsel for the petitioner that the word resides must be construed either liberally as ordinarily resident" or Residence even during a temporary sojourn for a particular number of years only, does not merit out acceptance. When the purpose, aim and object of the reservation is kept into consideration, the primary consideration in selection of candidates for admission to medical colleges must be merit and that is and that should be the general rule and any departure is to be made for sufficient and justifying reason. Taking into account the social and economic variable factors in the context of educational opportunities, variation and deviation is permitted from the said general rule. The reservation under the category backward area has been purposely and deliberately meant to be reserved for candidates belonging to backward area as notified by the Himachal Pradesh Government form time to time. Taking into account the social and economic variable factors in the context of educational opportunities, variation and deviation is permitted from the said general rule. The reservation under the category backward area has been purposely and deliberately meant to be reserved for candidates belonging to backward area as notified by the Himachal Pradesh Government form time to time. The words belong to imply, in our view, something more than the idea of casual association and involve continuity and connote even something more than mere birth in a place. In our view, having regard to the scheme of reservation and more particularly the purpose and object of a particular categorisation in favour of the candidates belonging to backward areas and more so being a concession and privilege the same has to be strictly construed not only to achieve the real object behind the classification of reservation but also ensure that it is not abused by clever manipulations of machinations. It is only with that intention any reservations in respect of backward classes or areas are construed to confine the privilege or concession conferred to those who hail permanently form a particular place either by virtue of their nativity coupled with continuous residence or continued permanent residence only thereby denying such benefits of reservations to those who had no intention to stay permanently or indefinitely in a particular place when the benefits are so designed to be inter-linked with the persons concerned belonging to a particular place. The guideline or criteria laid down for availing of the concession of reservation in favour of candidates belonging to backward area, extracted supra, will show that basically and primarily-one who stakes claim against such reserved category of seats must belong to any one of the notified backward area, and clauses (a) and (b) only indicate the further order of preference among the larger category of candidates belonging the backward area, while clause (c), stipulates the consequences of no one candidate being available to avail of the benefit of reservation. From the mere fact that of the candidates belonging to backward area a preferential class is carved out in favour of those who in addition has studied and passed two examinations in the schools located in the notified backward area, it cannot be said that the status of belonging to backward area has to be conferred upon for the mere studying in the schools located in backward areas alone. The stipulation enumerating the essential conditions to be satisfied by any one to claim the benefit of reservation against this category cannot be construed and interpreted even on the basis of the loosely worded form of certificate prescribed for the purpose but instead should strictly construed keeping in view the real and ultimate object to be achieved- which as indicated by us earlier is a deviation form the normal mode of selection by merit of all contesting candidates in open competition. Any interpretation otherwise or accepting the plea of the petitioner would perpetuate abuse and misuse by manipulation, at times going to the extent of defeating genuine candidates, who really deserve the benefit of persons not really hailing form notified backward areas but living in areas adjacent thereto can manipulate and take some examinations while at the same time under taking the crucial examination in modern schools in developed area. If abuse of this particular category of reservation is to be prevented and the benefit thereof is to be ensured to really deserving candidates belonging to backward area, it has to be necessarily and in our view as is inherently in built in the scheme of the reservation itself, to be held that nativity cum permanent residence has to be insisted upon as a must and basis as well primary condition to be satisfied and if persons satisfying this primary condition is found to have also studied and passed two examinations also form schools located in such backward area, they have to be treated more favourably and in preference to those who satisfy merely the basic or primarily condition only and such persons satisfying primary conditions only will be placed only second in the ladder of priority for consideration. In substance, what is stipulated to be an additional and tilting factor to show preference among a common and homogeneous category of candidates belonging to backward areas cannot itself be considered to be the main and only sufficient criteria to be branded as persons belonging to backward areas:" 18. From a perusal of the above, it would be clear that where the criteria for granting admission against the seats reserved for backward areas, the requirement was that the candidate should belong to backward areas, notified as such by the HP. Government and should have passed at least two examinations out of Primary/Middle/High/10+2 from the schools located in the backward area, it was held by a Division Branch- of this Court that the candidates from backward area should mean those who are either hailing or permanently settled or at least have the intention to reside permanently in the place and have permanent residence in such area notified form time to time by the Government to be backward area. It was also held that it was necessarily and is inherently in-built in the scheme of reservation itself that nativity-cum-permanent residence has to be insisted upon as a must and basic as well primary condition to be satisfied. 19. So far as the present case is concerned, in respect of admission to MBBS/BDS course for the 2004-1005 session, the HP. University while issuing the prospectus had laid criteria that the candidate should not only belong to the backward area but should be the bonafide of that particular backward area, besides having passed at least two examinations. Only such candidates who fulfill this condition were entitled to be considered against the seats reserved for candidates belonging to backward areas. In the prospectus for the session 2003-05, it was made clear by the H.P. University that the candidate belonging to backward area| must be bonafide of a particular backward area. In my opinion, this condition given in the prospectus is in consonance with the judgment passed by a Division Bench of this Court, in Ms. Alka Kumaris case (supra). As referred to above, for the 1998-99 session for admission to MBBS/BDS course the requirement was that the candidates should belong to backward area and should have passed at least two examinations form the schools located in the backward areas. Alka Kumaris case (supra). As referred to above, for the 1998-99 session for admission to MBBS/BDS course the requirement was that the candidates should belong to backward area and should have passed at least two examinations form the schools located in the backward areas. Even then, it was held by the Division Bench that the candidates form the backward area should mean those who are either hailing or permanently settled or at least have the intention to reside permanently in the place and had permanent residence in such area notified as backward area and that nativity-cum-permanent residence has to be insisted upon as a must and basic as well primary condition to be satisfied. Infact, the words " belong to" were interpreted to mean something more than the idea of causal association and involve continuity and connote even something more than mere birth in a place. It was further made clear that only those candidates who hail permanently from a particular place either by virtue of their nativity coupled with the continuous residence or continued permanent residence would be entitled to be considered for the seats reserved for backward areas. In the present case, as referred to above, the position has been made clear in the prospectus itself, inasmuch as in clause 2.5 of the prospectus for the session, 2004-05, it has been specified that the candidates should belong to backward areas as notified by the HP. Government and must be a bonafide of the particular backward area. 20. So far as Ashish Awasthi, petitioner, is concerned, admittedly originally he bad his father belong to District Kangra. It was only in the year 1983 that the father of the petitioner was posted in the State Bank of India at village Surangani, District Chamba, which was declared a backward area and continued to be posted at village Surangani since then. Admittedly, the petitioner or his father do not originally belong to village Surangani, District Chamba but they are there because of the posting of the father of the petitioner at village Surangani. Nothing has come on I the record to show that the petitioner and/or his father have their permanent residence at village Surangani and/or have the intention to reside there permanently. J On the other hand, they are there only because of the posting of the father of the petitioner at village Surangani. Nothing has come on I the record to show that the petitioner and/or his father have their permanent residence at village Surangani and/or have the intention to reside there permanently. J On the other hand, they are there only because of the posting of the father of the petitioner at village Surangani. Admittedly, the petitioner and his father neither hail form any backward area including Surangani nor they have nativity in any backward area including Surangani. Similarly, nothing has come on the record to show that the petitioner and/or his father have intention to reside permanently at village Surangani. Under these circumstances, in my opinion, keeping in view the law laid down by a Division Bench of this Court in Ms. Alka Kumars case (supra), it could not be said that the petitioner either hails or is permanently settled or at least have the intention to reside permanently at village Surangani and as such is a permanent resident of the area, which has been declared as a backward area by the HP. Government. That being so, in my opinion, keeping in view the law laid down by the Division Bench in Ms. Alka Kumaris case (supra), it could not be said that the petitioner was a bonafide resident of a backward area and is entitled to seek admission in MBBS/BDS course against the seats reserved for backward areas. 21. In view of the above, in my opinion, no fault could be found with the action of the respondents in refusing to consider the case of the petitioner for admission to MBBS/BDS course for the session 2004-05 against the seats reserved for backward areas. 22. No other point has been urged before me in this petition. 23. For the reasons recorded above, finding no merit in this petition, the same is hereby dismissed.