Kulbhushan Sharma v. Himachal Pradesh National Law University Gandal
2017-07-07
AJAY MOHAN GOEL, SANJAY KAROL
body2017
DigiLaw.ai
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner, who claims himself to be a pro bono publico has prayed for the following reliefs: (i) That the Respondent University may kindly be restrained from converting the vacant seats reserved candidates, Himachal Pradesh State Quota seats for admission to B.A. BBA/LLB (Hons.) 5 year Integrated Course in Himachal Pradesh National Law University, Gandal (Shimla) for academic session commencing in the year 2017, in the interest of justice. (ii) That the Respondents may very kindly be further directed to reduce the cut of marks as minimum eligibility from 60 marks to 50 marks for admission to B.A./BBA/LLB (Hons.) 5 years Integrated Course in Himachal Pradesh National Law University, Gandal (Shimla) against the vacant seats reserved for Himachal Pradesh State Quota. (iii) That the respondent University may also be restrained from conducting the IIIrd round of counselling on the basis of corrigendum dated 12.06.2017 at Annexure P-9 as scheduled at Annexure P-10 by inviting the candidates at Annexure P-11. (iv) Any other relief which this Hon’ble Court deems just and proper in the facts and circumstances of the case may kindly be granted in favour of the petitioner and against the respondents under the law.” 2. As per the affidavit filed in support of the writ petition, petitioner is a resident of Kahanev, P.O. Lambloo, Tehsil & District Hamirpur, H.P. and his occupation is that of a Government Contractor. Besides this, contents of paras 1 to 13 of the writ petition have been affirmed and declared by the petitioner in his affidavit to be true and correct to the best of his personal knowledge and belief. Averments/allegations in the petition are that the petitioner is a public spirited person and that he intends to highlight the denial of equal opportunity to Himachali domicile candidates as compared to other categories in admission to five years law course in Himachal Pradesh National Law University, Gandal, Shimla. It is also mentioned in the petition that the petitioner happens to be a Graduate Government Contractor and he has no personal interest in the matter. It is averred in the petition that vide Annexures P-1 and P-2 appended with the writ petition, respondent No.1-University invited applications for admission to five years law course in the said University and also issued the schedule of admission.
It is averred in the petition that vide Annexures P-1 and P-2 appended with the writ petition, respondent No.1-University invited applications for admission to five years law course in the said University and also issued the schedule of admission. It is further mentioned in the writ petition that Annexure P- 3 appended therewith are Admission Guidelines, whereas Annexure P-4 demonstrates distribution of seats amongst various categories, as per which, 15% seats are reserved for SC category, 7.5% for ST category, 3% for Differently Abled, 5% for Wards of Serving/Retired Defence Personnel within the sanctioned intake. Over and above sanctioned intake, 2 seats are reserved for Kashmiri Migrants, 15% for International Students including NRIs. and out of 60 seats, 15, i.e. 25% seats are reserved for Himachal Pradesh State Domicile candidates. Petitioner has appended with the writ petition as Annexure P-6 result of written test conducted by respondent No. 1-University for the academic session 2017 and has further mentioned that first counselling was held on 15.06.2017, in which candidates who had obtained marks as depicted in Annexure P-7 were invited for counselling. It is further mentioned in the petition that for left out seats, second counselling was scheduled on 24.06.2017, which was conducted as per Annexure P-8 appended with the writ petition. According to the petitioner, for the left out vacant seats, respondent-University has reduced minimum eligibility criteria in case of SC, ST, Persons with Disability and Kashmiri Migrants by reducing marks, whereas candidates with higher merit are still awaiting admission. It is further averred in the writ petition that left out vacant seats have been thrown out in the open market against All India Quota instead of reducing the minimum eligibility marks from 60 to 50 marks for the Himachal Pradesh State quota seats for whom the same were reserved. It is further mentioned in the petition that quota of the State of Himachal Pradesh has been wrongly converted into All India Quota which has deprived Himachali domicile students opportunity of gaining admission against that quota. As per the petitioner, Himachali domicile candidates have been discriminated in this regard as compared to SC/ST/Persons with Disability and Kashmiri Migrants are concerned.
It is further mentioned in the petition that quota of the State of Himachal Pradesh has been wrongly converted into All India Quota which has deprived Himachali domicile students opportunity of gaining admission against that quota. As per the petitioner, Himachali domicile candidates have been discriminated in this regard as compared to SC/ST/Persons with Disability and Kashmiri Migrants are concerned. As per the petitioner, State quota seats have to be filled from amongst Himachali domicile candidates only by reducing the marks and conversion of Himachali State Quota to All India Quota instead of reducing cut off marks in case of Himachal Pradesh General Category candidates is gross violation of mandate enshrined in Part-III of the Constitution of India and the same smacks legal malafides. It is on these bases that petition has been filed praying for reliefs already enumerated by us above. 3. Expression ‘Public Interest Litigation’ lexically means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or class of the community has pecuniary interest or some interest by which their legal rights or liabilities were affected. A true pro bono publico is a selfless citizen having no personal motive of any kind except either compassion for the weak and disabled or deep concern for stopping serious public injury approaches the Court for enforcement of fundamental rights of those who genuinely do not have adequate means of access to the judicial system or preventing or annulling executive acts and omissions violative of Constitution or law resulting in substantial injury to public interest. 4. In Black’s Law Dictionary, “public interest” is defined as follows: “Public interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government…..” 5. Thus, personal grievance cannot be enforced in the garb of Public Interest Litigation. Public Interest Litigation has great significance in the present day judicial system. 6. In State of Himachal Pradesh Vs.
It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government…..” 5. Thus, personal grievance cannot be enforced in the garb of Public Interest Litigation. Public Interest Litigation has great significance in the present day judicial system. 6. In State of Himachal Pradesh Vs. Umed Ram, AIR 1986 SC 847 , the Hon’ble Supreme Court has observed: “In public interest litigation cases the most crucial question for the Court is to measure the seriousness of the petitioner and to see whether he is actually the champion of the cause of the persons or groups he is representing. The effect of a public interest litigation should go beyond the sphere of the parties present in the proceedings and it is to be noted that public interest litigation must be accompanied by adequate judicial control so as to prevent this technique from being used as an instrument of coercion, blackmail or for other oblique motive.” 7. Thus, it is evident that a busybody or an interloper or a person with a motive cannot be permitted to invoke the extraordinary jurisdiction of the Court in the guise of public interest litigation to espouse a cause which is personal in nature or which is vexatious and is motivated. 8. In Fertilizer Corpn. Kamagar Union Vs. Union of India, AIR 1981 SC 344 , the Hon’ble Supreme Court has held: “41. Law as I conceive it, is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundary will be litigation-happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms suffer from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public-minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi. 42. Schwartz and H.W.R. Wade wrote in Legal Control of Government: "Restrictive rules about standing are in general inimical to a healthy system of a administrative law.
42. Schwartz and H.W.R. Wade wrote in Legal Control of Government: "Restrictive rules about standing are in general inimical to a healthy system of a administrative law. If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases where they wish to sue merely out of public spirit, why should they be discouraged?" They further observed: "The problem of standing, or locus standi is inherent in all legal systems...... But in the United States, perhaps because of the constitutional basis which the subject has acquired in federal law it can be discussed as a single topic. In Britain it is a thing of shreds and patches, made up of various differing rules which apply to various different remedies and procedures. It is a typical product of the untidy system of remedies, each with its own technicalities, which all British administrative lawyers would like to see reformed." We have no doubt that having regard to the conditions in Third World countries, Cappelletti is right in his stress on the importance of access: "The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee legal rights." The need for a radical approach has been underscored in New Zealand by Black: ".......today it is unreal to suggest that a person looks to the law solely to protect his interests in a narrow sense. It is necessary to do no more than read the newspapers to see the breadth of the interests that today's citizen expects the law to protect-and he expects the court where necessary to provide that protection. He is interested in results, not procedural niceties." 9.
It is necessary to do no more than read the newspapers to see the breadth of the interests that today's citizen expects the law to protect-and he expects the court where necessary to provide that protection. He is interested in results, not procedural niceties." 9. The Hon’ble Supreme Court in various decisions has in no uncertain terms observed that a person has a locus to file a proceeding for redressal of a grievance which is public in nature without himself being a busybody or meddler and without being guided by any private motivation. 10. In S.P. Anand, Indore Vs. H.D. Deve Gowda and others (1996) 6 SCC 734 , the Hon’ble Supreme Court has held: “18. Before we part, we cannot help mentioning that on issues of constitutional laws, litigants who can lay no claim to have expert knowledge in that field should refrain from filing petitions, which if we may say so, are often drafted in a casual and cavalier fashion giving an extempore appearance not having had even a second look. This is the impression that one gets on reading the present petition. It is of utmost importance that those who invoke this Court's jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight-errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the court that he does not rush to court without undertaking a research, even if he is qualified or competent to raise the issue. Besides, it must be remembered that a good cause can be lost if petitions are filed on half-baked information without proper research or by persons who are not qualified and competent to raise such issues as the rejection of such a petition may affect third party rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations.
So also the court must be careful to ensure that the process of the Court is not sought to be abused by a person who desires to persist with his point of view, almost carrying it to the point of obstinacy, by filling a series of petitions refusing to accept the Court's earlier decisions as concluding the point. We say this because when we drew the attention of the petitioner to earlier decisions of this Court, he brushed them aside, without so much as showing willingness to deal with them and without giving them a second look, as having become stale and irrelevant by passage of time and challenged their correctness on the specious plea that they needed reconsideration. Except for saying that they needed reconsideration he had no answer to the correctness of the decisions. Such a casual approach to considered decisions of this Court even by a person well-versed in law would not be countenanced. Instead, as pointed out earlier, he referred to decisions having no bearing on the question, like the decisions on cow slaughter cases, freedom of speech and expresssion, uniform civil code, etc., we need say no more except to point out that indiscriminate of this important lever of public interest litigation would blunt the lever itself.” 11. In P. Seshadri Vs. S. Mangati Gopal Reddy and others (2011) 5 SCC 484 , the Hon’ble Supreme Court has held: “19. The High Court ought to have satisfied itself with regard to the credentials of respondent No.1 before entertaining the writ petition, styled as public interest litigation. Even a cursory perusal of Paragraph 2 of the affidavit filed in the High Court by the respondent No.1 would clearly show that the respondent No.1 has no special concern with the extension granted to the appellant. Respondent No.1 had merely pleaded that he moved the writ petition as he is a devotee of Lord Venkateswara. He is an agriculturist by profession. The appellant has failed to supply any specific particulars as to how he is in possession of any special information. The controversy with regard to the management and administration of the Temple's properties and funds have been deliberately mixed up with the extension granted to the appellant by the TTD Board. It is an admitted position that different proceedings are pending with regard to the management controversy of the Temple Trust.
The controversy with regard to the management and administration of the Temple's properties and funds have been deliberately mixed up with the extension granted to the appellant by the TTD Board. It is an admitted position that different proceedings are pending with regard to the management controversy of the Temple Trust. The aforesaid controversy had no relevance to the extension granted to the appellant. The writ petition seems to have been actuated by some disgruntled elements. He has also failed to show as to how and in what manner he represents the public interest. 20. This Court in the case of (Dr.) B. Singh Vs. Union of India & Ors.5 quoted with approval the definition of public interest as stated in the report of Public Interest Law, USA, 1976 by the council for Public Interest Law set up by the Ford foundation in USA. In the aforesaid report, the definition of public interest is given as under:- “Public interest law is the name that has recently been given to efforts which provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary marketplace for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.” 21. This Court in the case of Neetu Vs. State of Punjab (Supra) emphasized the need to ensure that public interest litigation is not misused to unleash a private vendetta against any particular person. In Paragraph 7, it is observed as follows:- "7. When a particular person is the object and target of a petition styled as PIL, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object." 22. Similar observations had been made by this Court in the case of Ashok Kumar Pandey Vs. State of West Bengal. We may reiterate here the observations made in Paragraph 12 herein, which are as follows:- "12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking.
Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or a member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases, with exemplary costs." 23. This Court again in the case of Divine Retreat Centre (Supra) reiterated that public interest litigation can only be entertained at the instance of bonafide litigants. It cannot be permitted to be used by unscrupulous litigants to disguise personal or individual grievances as public interest litigations.” 12. The Hon’ble Supreme Court in Bihar Public Service Commission Vs. Saiyed Hussain Abbas Rizwi and another (2012) 13 SCC 61 has held: “23. The expression “public interest” has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression “public interest” must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression “public interest” like “public purpose”, is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs.
In its common parlance, the expression “public interest” like “public purpose”, is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs. [State of Bihar v. Kameshwar Singh ( AIR 1952 SC 252 )]. It also means the general welfare of the public that warrants recommendation and protection; something in which the public as a whole has a stake [Black’s Law Dictionary (Eighth Edition).” 13. The Hon’ble Supreme Court in Kishore Samrite Vs. State of Uttar Pradesh and others (2013) 2 SCC 398 has held: “32.8. The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted “visa”. Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it.[Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114 ; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402 ]. 33. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. In P.S.R. Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141 , the Court held: “15. The crucial significance of access jurisprudence has been best expressed by Cappelletti: “The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic ‘humanright’ of a system which purports to guarantee legal rights.” 16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are.
We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ petitioner and dismiss the petition.” 34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.” 14. Now, coming to the facts of the present case, as per the petitioner, respondent-University has illegally diverted the quota of seats meant for Himachali domicile candidates towards All India Quota and further whereas qualifying marks in the case of SC, ST, Persons with Disability and Kashmiri migrants have been reduced, Himachali domicile candidates have been discriminated in this regard. 15. At this stage, without even going into the merits of these allegations, in our considered view, petitioner admittedly does not has any locus standi to file and maintain public interest litigation pertaining to admission in 5 years law course in respondent-University. We say so for the reason that petitioner, as has been informed to us at Bar by the learned counsel representing him, neither has any history of filing any public interest litigations nor he is in any manner either academically or professionally affiliated or connected with the process of admissions in respondent-University. 16. Assuming for the sake of arguments that seats belonging to Himachali domicile candidate have been arbitrarily diverted towards All India Quota by respondent-University, then obviously the affected candidates can assail the same by way of filing writ petitions before this Court. However, no such petition till date has been filed before us. Not only this, the allegation made in the petition that minimum eligibility marks in the case of SC, ST, Persons with Disability and Kashmiri migrants were reduced vide Annexure P-9 is palpably incorrect, as perusal of Annexure P-9 appended with the petition demonstrates that by way of this Corrigendum, a typographical error which had crept in the website pertaining to cut off marks was ordered to be corrected therein.
This Corrigendum dated 12.06.2017 appended with the petition as Annexure P-9 reads as under: “With regards to the cut off marks (Marks obtained out of total marks) for SC & ST, PWD and KM categories, due to typological error it has been shown on the website as 45 & 60 respectively. For the information to all and one henceforth it should be read as 20 for SC, ST and PWD and for Kashmiri Migrants 30.” 17. Therefore, petitioner has tried to mislead this Court by trying to portray that whereas on one hand, respondent-University has reduced qualifying marks for certain categories, however, Himachali domicile candidates have been discriminated in this regard. 18. Now, coming to the second aspect of the matter of diverting the seats of Himachali domicile quota to All India Quota, herein also, in our considered view, the petitioner has tried to mislead the Court. Apparently, it seems that on account of sufficient number of eligible Himachali domicile candidates not being available, the said seats may have been offered on the basis of general merit by respondent-University. If that is the case, then we do not find any infirmity in the same, because petitioner has not drawn our attention to any material on record from which it can be inferred that vacant seats reserved for Himachali domicile candidates in the eventuality of eligible candidates not being available cannot be filled from general merit. Besides this, it is apparent that the petition is a motivated one and is apparently being filed by the petitioner at the behest of those Himachali domicile candidates who have not been able to obtain the minimum qualifying marks, but are desirous of admission under the said quota. In our considered view, the course of Public Interest Litigation cannot be adopted in such like situation. Public Interest Litigation can be filed to espouse a cause of that section of the society whose fundamental or legal rights are being infringed and who for some reason may not be in a position to knock the doors of justice. In the present case, neither any fundamental right nor any legal right of any privileged group has been demonstrated to have been violated by the respondent-University.
In the present case, neither any fundamental right nor any legal right of any privileged group has been demonstrated to have been violated by the respondent-University. Right of admission in any course is not a matter of right and the same obviously depends upon aspirant candidate either possessing the minimum eligibility qualification or his passing the qualifying examination, if so prescribed and obtain minimum pass marks in the same, if so mentioned. 19. Therefore, as the present writ petition is not a Public Interest Litigation, but is obviously a motivated petition, the same is dismissed with costs, assessed at Rs. 25,000/-. Miscellaneous applications, if any, stand disposed of.