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2017 DIGILAW 921 (MP)

Kushal Saxena v. State of M. P.

2017-08-21

NANDITA DUBEY, R.S.JHA

body2017
ORDER 1. The petitioner has filed this petition praying for a direction to the respondent authorities to issue a certificate and register the name of the petitioner as dependent of a Freedom Fighter and thereafter direct the respondents to grant admission to the petitioner in Mahatma Gandhi Memorial Medical College, Indore in accordance with the allotment letter, (Annexure P-4). 2. The facts in brief, leading to the filing of the present petition, are that the petitioner appeared in the National Eligibility cum Entrance Examination, 2017 for the purposes of obtaining admission in the MBBS/BDS courses in the State of Madhya Pradesh under the Unreserved Freedom Fighter quota. The petitioner has stated that the petitioner is the grandson of Late Shri Raj Narayan Saxena, a Freedom Fighter, who is registered as such in Agra district in the State of Uttar Pradesh. The petitioner states that the“petitioner's father subsequently migrated to Madhya Pradesh and has settled in Satna and the petitioner has also undergone and undertaken his entire education in Satna itself and, therefore, at present is a bona fide resident of Satna, Madhya Pradesh. 3. The petitioner further states that he had applied for admission under the Unreserved Freedom Fighter category on the strength that his grandfather was a Freedom Fighter registered in the State of Uttar Pradesh and in accordance with his merit in that category, a letter of provisional allotment (Annexure P-4) has been issued by the respondents, whereby he has been allotted Mahatma Gandhi Memorial Medical College, Indore for the purposes of pursing the MBBS course. 4. The learned counsel for the petitioner submits that inspite of the aforesaid provisional allotment, the respondent authorities are denying admission to the petitioner on account of the fact that the Collector, Satna has refused to issue a Freedom Fighter dependent certificate to the petitioner on the ground that his grandfather was a Freedom Fighter of the State of Uttar Pradesh and is already registered at Agra in the State of Uttar Pradesh as such and, therefore, as his grandfather was a Freedom Fighter of Uttar Pradesh, he cannot be granted a certificate to the effect that the grandfather of the petitioner was a Freedom Fighter of Madhya Pradesh and the petitioner is his dependent. The learned counsel for the petitioner submits that in such circumstances, necessary directions be issued to the respondents. 5. The learned counsel for the petitioner submits that in such circumstances, necessary directions be issued to the respondents. 5. The learned Government Advocate appearing for the respondents/State, on advance copy, submits that the issue raised by the petitioner stands concluded by the decision of the Division Bench of this Court rendered in the case of Ku. Madhu Mittal v. State of Madhya Pradesh, [ 1984 JLJ 105 = AIR 1984 MP 59 ], wherein a Division Bench of this Court has already held that reservation for Freedom Fighters in a particular State are confined to the children and grand children of Freedom Fighters who are bona fide residents of that State and such a benefit cannot be claimed by the children or grand children in other States. It is submitted that the Division Bench of this Court, after considering the law in this regard, has rejected the claim of the petitioner therein and in such circumstances, the petition filed by the petitioner be also dismissed in view of and in accordance with the decision of the Division Bench rendered in the case of Ku. Madhu Mittal (supra). 6. The learned counsel appearing for the respondent No.2/M.C.I., on advance copy, has also“reiterated the same submissions. 7. Having heard the learned counsel for the parties and having carefully perused the Division Bench decision of this Court rendered in the case of Ku. Madhu Mittal (supra), it is observed that the Division Bench in paragraphs 11, 15 and 18 has held as under : “11. Now the question before us is whether the requirement in the Admission Rules about the bona fide residence of a Freedom Fighter can be called discriminatory. In D. P. Joshi v. Madhya Bharat State, [ AIR 1955 SC 334 ], their Lordships of the Supreme Court held by majority that a rule requiring capitation fee from non Madhya Bharat students for admission to Medical College, Indore was valid and did not infringe Articles 14 and 15 of the Constitution. In paragraph 15 of the Judgment, the following observations were made : "The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage education within its borders. Education is a State subject, and one of the directive principles declared in Part IV of the Constitution is that the State should make effective “provisions for education within the limits of its economy (Vide Article 41). The State has to contribute for the upkeep and running of its educational institutions." This statement of law was followed later by the Supreme Court in N. Vasundara v. State of Mysore, [ AIR 1971 SC 1439 ]. Thus, it is recognised that the condition about bona fide residence of a candidate in a particular State where admission is sought is valid and within the parameters of the Constitution. The reasoning is that a State, which lays down guidelines for admission to its educational institution, can make such rules for the benefit of the residents within the State. This being an accepted position, the State of M. P. was within its right to frame a rule for confining the benefit of reservation only to the children and grand children of such Freedom Fighters who are/were bona fide residents of M.P. 12. to 14. xxx xxx xxx 15. As noted earlier, creation of reserved categories for different classes is discriminatory and unless there is a reasonable basis for such classification, the same is contrary to the spirit of the Constitution. Reservation is a concession. A candidate seeking to take advantage of such concession must fulfil all the conditions laid down under the rule. It is not open to a person seeking benefit of a concession to say that a particular condition in the said rule is unreasonable and he should be allowed to take“advantage of the concession without fulfilling the requirements of the rule. We, therefore, hold that the petitioners, who want to take advantage of the concession can do so only if they fulfil all the conditions mentioned therein. If they are unhappy with any condition, they are free to compete with others in fair and open competition without seeking shelter under any of the reserved categories. We do not find any merit in the arguments of the learned counsel for the petitioners. The petitions are liable to be dismissed. 16. & 17. xxx xxx xxx 18. If they are unhappy with any condition, they are free to compete with others in fair and open competition without seeking shelter under any of the reserved categories. We do not find any merit in the arguments of the learned counsel for the petitioners. The petitions are liable to be dismissed. 16. & 17. xxx xxx xxx 18. In Miscellaneous Petition No. 1987 of 1983, petitioners 2 and 3 claimed to be admitted in the Freedom Fighters category on the ground that their grandfather (mother's father) was a Freedom Fighter in the State of Kerala. This fact was not disputed but for reasons already stated, the petitioners' grandfather being a resident of Kerala was not a bona fide resident of Madhya Pradesh, and therefore, these petitioners could not claim the benefit of reservation in the category of Freedom Fighters.” 8. In view of the above, we find no merit in the contention of the learned counsel for the petitioner that the petitioner whose grandfather was a Freedom Fighter registered in the State of Uttar Pradesh should be granted the benefit under the Freedom Fighter“category in the State of Madhya Pradesh. 9. The petition, filed by the petitioner, being meritless is accordingly dismissed. 10. It is however observed that in view of the order passed today, as the petitioner can be treated as a candidate of the unreserved open category, his case may be considered, strictly in accordance with the rules and in case the petitioner is entitled to and is able to, otherwise, qualify on merits and fulfills all other requirements, under the open general category for admission in the ongoing counselling, if so advised. 11. With the aforesaid observation, the petition filed by the petitioner stands dismissed.