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2010 DIGILAW 931 (MP)

Akanksha Pandey v. State of M. P.

2010-09-14

K.K.LAHOTI, VIMLA JAIN

body2010
JUDGMENT : Shri D. K. Tripathi, counsel for petitioner. Shri Harish Agnihotri, G. A., for respondent Nos. 1 and 2. Shri Vivek Mourya, counsel for respondent No. 4. The petitioner has sought following reliefs in this petition: - "(1) To call for entire relevant record. [1(a)] To declare the section 8 of the Madhya Pradesh Niji Vyavasayik Shikshan Sansthan (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, Act No. 21 of 2007" is unconstitutional. [2] To declare the Rule 9 of the Madhya Pradesh Private Medical and Dental Undergraduate Entrance Examination Rules, 2009 is unconstitutional. [3] To direct the respondents to permit the petitioner as open + freedom fighter category in the counselling and the same allot a seat of M.B.B.S., in any private medical college. [4] To pass such any other order as deem fit under the facts and circumstances of the case. [5] Any other relief together cost of the petition which this Hon'ble Court deem fit and proper under the facts and circumstances of this case may also be awarded in favour of the petitioner." 2. The facts of the case are that petitioner applied for M.B.B.S. Course in private medical college. The admission is governed by the provision of M. P. Private Medical and Dental Undergraduate Entrance Examination Rules, 2009 (hereinafter referred to as 'Rules of 2009' for short). These Rules are framed by the State exercising powers under section 12 of M. P. Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (Act No. 21 of 2007) (hereinafter referred to as 'Adhiniyam 2007' for short). The petitioner has challenged the vires of section 8 of the said Adhiniyam and Rule 9 of the Rules of 2009 on following grounds:- (1) That no provision has been made by the respondents in respect of providing reservation to freedom fighter category in the Act No. 21 of 2007 and also in Rule 9 of the Rules of 2009, while the State Government has issued rules for Pre-Engineering and Pharmacy Test (PEPT) 2009 in which a provision has been made for reservation to the freedom fighter category students to the extent of 3% but no provision has been made in the Rules of 2009 for such category. (2) That the State Government in the reply has not explained the reasons why such reservation has not been made in the Act and Rules by the State. 3. Shri Agnihotri, learned counsel for State though fairly conceded this fact that there is no explanation on the part of State in not providing reservation to the freedom fighter category in the Adhiniyam and Rules, but submitted that merely reservation was provided to the students of PEPT will not be a ground to declare section 8 and Rule 9 of the Adhiniyam and Rules are ultra vires. That the Adhiniyam and Rules are framed to regulate admission in private colleges providing such medical education and under the Act of 2007 the Rules have been framed. Apart from this, earlier petitioner filed a petition for the same relief, which was considered by the Division Bench of this Court and dismissed. It is submitted that the provisions of section 8 and Rule 9 are valid and need not be declared ultra vires. 4. To appreciate the rival contentions, section 8 of the Adhiniyam 2007 may be referred which reads as under:- "8. Reservation of seats - In admission to private unaided professional educational institutions, other than the minority educational institutions referred to in clause (1) of Article 30 of the Constitution of India, there shall be reservation at the stage of admission for the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens as may be prescribed by the State Government." 5. The Adhiniyam has been enacted for the regulation of admission and fixation of fee in private professional educational institutions in the State of Madhya Pradesh and to provide for reservation of seats to persons belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes and the matters connected therewith or incidental thereto. The statement of objects and reasons of the Act provides that Article 15(5) of the Constitution of India as inserted by the Constitution (Ninety-third) Amendment Act, 2005 provides for making any special provision by law by the State Government for advancement of any socially and educationally backward classes of citizen or for the Scheduled Castes or the Scheduled Tribes in relation to admission to educational institution including private educational institutions, whether aided or unaided, other than minority educational institutions, notwithstanding anything contained in Article 15 and Article 19(1)(g) of the Constitution. The State Government in the light of aforesaid object considered necessary to provide for regulation of admission and determination of fee in private unaided professional educational institutions in the State of Madhya Pradesh and to provide for reservation of seats to persons belonging to the Scheduled Castes, the Scheduled Tribes and Other Backwards Classes in the seats in private unaided professional educational institutions. In view of aforesaid preamble and statement of objects, Adhiniyam 2007 was enacted to provide reservation of seat to persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes in the private unaided educational institutions. 6. In view of aforesaid object of enactment of Adhiniyam, it is clear that the entire object of such an enactment was to provide reservation of seats to the students belonging to Scheduled Caste, Scheduled Tribe and Other Backward Classes. 7. In view of aforesaid section 8 has been enacted by the Legislature to provide such reservation and validity of this section cannot be challenged on the ground that no reservation has been provided to the candidates of freedom fighter category. No provision could be brought to our notice on the basis of which section 8 can be declared as ultra vires. Merely the State Government framed Pre-Engineering and Pharmacy Test (PEPT) Rules, 2009 will not be a ground to declare Adhiniyam 2007 as ultra vires. In view of aforesaid section 8 of the Adhiniyam 2007 cannot be declared as ultra vires and in this regard contention raised by learned counsel for petitioner are repelled. 8. Now the validity of Rule 9 of Rules of 2009 may be examined. This rule has been framed by the State Government in exercise of powers under section 12 of the Adhiniyam, 2007 which reads as under:- "12. Power to make rules. The State Government may, by notification, make rules for carrying out the purposes of this Act." 9. The Rule provides that the State Government may by notification make rules for carrying out the purposes of this Act. 10. Rule 9 of the Rules provides as under:- "9. Reservation:- Institution shall be allowed to fill up to 15% of the sanction seats by NRI candidates only, in the manner prescribed by the admission and Fee Regulatory Committee before the Counselling. NIR Seats remaining vacant shall be merged into the Counselling. 10. Rule 9 of the Rules provides as under:- "9. Reservation:- Institution shall be allowed to fill up to 15% of the sanction seats by NRI candidates only, in the manner prescribed by the admission and Fee Regulatory Committee before the Counselling. NIR Seats remaining vacant shall be merged into the Counselling. 20% seats are reserved for candidates belonging to Scheduled Tribes, 16% seats are reserved for candidates belonging to Scheduled Castes and 14% seats are reserved for candidates belonging to Other Backward Classes other than creamy layer of OBC of Madhya Pradesh or as amended from time to time. (1) Reservation for woman candidates shall be 30% according to merit cum option in each category. (2) The minimum percentage of marks in entrance examination tor eligibility for admission to Undergraduate Medical and Dental courses shall be 40% for SC/ST/OBC candidates and 50% for unreserved category candidates. (3) The candidate claiming to be a candidate belonging to SC/ST/OBC (Non Creamy) category of Madhya Pradesh shall have to attach a valid certified copy of certificate issued by the Competent Authority with the application form and the original certificate has to be produced at the time of counseling. (4) For Physically Handicapped persons who are bona fide residents of Madhya Pradesh and who belongs to ST, SC, OBC and unreserved category, three percent (3%) seats are reserved for admission to U. G. Courses. The candidate claiming admission against these seats will have to produce a valid certificate, in the prescribed form from District Medical Board and eligibility certificate from superintendent vocational Rehabilitation Centre for Physically Handicapped, Government of India, Ministry of Labour, Nepier Town, Jabalpur. However it will be governed by guideline framed by MCI. Following disabilities are not eligible - 1. Upper limb Handicapped. 2. Visual Handicapped. 3. Hearing Handicapped. 4. Lower limb more than 70% Handicapped; Certificate of eligibility should not be more than 3 months old at the time of counseling." 11. This Rule specifically provides reservation of 20% seats for candidates belonging to Scheduled Tribes, 16% seats for Scheduled Castes and 14% seats for candidates belonging to Other Backward Classes other than creamy layer of OBC of Madhya Pradesh. This Rule specifically provides reservation of 20% seats for candidates belonging to Scheduled Tribes, 16% seats for Scheduled Castes and 14% seats for candidates belonging to Other Backward Classes other than creamy layer of OBC of Madhya Pradesh. Sub-section (4) provides that for Physically Handicapped persons who are bona fide residents of Madhya Pradesh and who belongs to Scheduled Tribe, Scheduled Caste, Other Backward Classes and Unreserved category, 3% seats shall be reserved for admission to Under-graduation courses. 12. Though it is urged by Shri Tripathi, learned counsel for petitioner that when a reservation has been made for Physically Handicapped person, and no explanation has been given on the part of the State to not provide reservation to the candidates of freedom fighter category, but as stated hereinabove the aforesaid reservation has been made to the candidates belonging to Physically Handicapped category belonging to Scheduled Caste, Scheduled Tribe, Other Backwards Classes and Unreserved category. When the provision has been specifically made in section 8 of the Adhiniyam of 2007 to provide reservation for Scheduled Caste, Scheduled Tribe and OBC and in the same category aforesaid reservation has been made to extent 3% of seat to the physically handicapped, no fault is found. And this by itself will not be a ground to challenge Rule 9 on the anvil that no reservation has been provided to freedom fighter category. Though the State Government while framing Pre-Engineering and Pharmacy Test (PEPT) 2009 provided reservation to the candidates of freedom fighter category, but on the basis of framing of another Rule, the Rule of 2009 cannot be declared as ultra vires. Until and unless the rule is in contravention of constitutional provision or statutory provision, such Rule cannot be declared as ultra vires. 13. The case of petitioner was also considered on merits by the Division Bench of this Court in W. P. No. 7818/2009, Akanksha Pandey vs. State of M. P. and others, in which a Division Bench of this Court considering the merits of the case held thus:- "On a perusal of the said provisions, it is quite clear that the reservation of seats for private unaided professional educational institutions is restricted to the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, as may be prescribed by the State Government. Thus, the statutes has created reservation in respect of the aforesaid three categories. Thus, the statutes has created reservation in respect of the aforesaid three categories. The Act does not authorize any kind of reservation in favour of the freedom-fighters and sainiks categories for private unaided professional educational institutions. The rule has been framed in consonance with the 2007 Act. As is manifest, the Rule also does not prescribe any reservation for 'freedom-fighter' and 'sainik' categories in private unaided professional educational institution. Thus, the action of the respondents being in accord with the Act and the Rules cannot be found fault with. The stand that there is no prohibition in the Act and the Rules is absolutely spacious and mercurial inasmuch as on that ground the action taken by the respondents cannot be faulted." 14. After decision on merits of the case the petitioner has challenged the validity of section 8 of the Adhiniyam 2007, but as discussed hereinabove we do not find any case for declaring section 8 of the Adhiniyam, 2007 or Rule 9 of the Rules, as ultra vires and accordingly this petition is found without merit and is dismissed with, no order as to costs. Petition dismissed.