JUDGMENT Dharam Chand Chaudhary, J. - The petitioners in these writ petitions are the children/wards allegedly of bonafide Himachalies living outside the State of Himachal Pradesh on account of job of their parents in private sector/being in private occupation. In the recent past, the exemption to this category of the candidates for seeking admission to MBBS/BDS courses in medical/dental colleges situated in the State on the basis of their merit in All India National Eligibility-cum-entrance test (in short NEET-UG-2018) qua passing two out of the following four examinations i.e. "1) Middle or equivalent, 2) Matric or equivalent, 3) 10+1 or equivalent and 4) 10+2 or equivalent from the schools/colleges situated in the State, of course on furnishing the requisite certificates appended to the Prospectus was introduced. However, the respondents now deleted such provisions from the Prospectus (Annexure P-13 to one of the CWPs i.e CWP No. 1353 of 2018) published for admission to above courses for academic session 2018- 19. They are aggrieved by such action on the part of the respondents deleting the provisions granting exemption to their category from the condition of passing at least two examinations out of four from the schools/colleges situated in this State. 2. The grouse of the petitioners, as brought to this Court, in a nut shell, is that they had to undertake their studies in the schools outside the State of Himachal Pradesh on account of their parents, though bonafide Himachalies, however, residing outside in connection with their job in private sector/they being in private occupation. Such exemption being provided to the students of their categories since long and even in the Prospectus Annexure P-11 published initially on 12.6.2018 for the academic session 2018-19 also and they having applied for admission under the State quota seats i.e. 85%, the deletion of the provisions granting exemption to them by way of two corrigendum(s) Annexures P-10 & P-12 left them high and dry and their right to seek admission is restricted to remaining 15% seats to be filled in at All India Level. They will not be able to get admission in any Government or private College either in the State or elsewhere.
They will not be able to get admission in any Government or private College either in the State or elsewhere. Such action on the part of the respondents has been sought to be quashed allegedly being irrational and illegal besides being arbitrary as the same has debarred the children of the bonafide Himachalies working in private sector and doing private business outside the State that too while continuing benefit of such exemption in favour of the children of serving/retired employees of the Central Government/UT/Other State Governments and children of employees of the Autonomous Organizations/Semi-Government Bodies of Central Government/UT/Other State Governments, hence, in clear violation of Article 14 of the Constitution of India. It has also been emphasized that the respondents have considered the children of the bonafide-Himachalies serving in Central Government/other States/UTs and other organization/local bodies eligible for State quota seats and arbitrarily debarred the similarly situated children i.e. (the petitioners) of those persons who are either working in private sector or doing some private business outside the State and thereby created a separate class within the same class which allegedly is in clear violation of fundamental rights of the petitioners. 3. The response of the respondent-State, filed in one of the Writ Petitions i.e. CWP No. 1353 of 2018, in a nut shell, is that the exemption to the children of bonafide Himachalies residing outside the State in connection with their employment in private sector/occupation from the requirement of passing two examinations out of the four indicated in the Prospectus was given for the first time in the year 2013-14. This year, the respondent-State has constituted Prospectus Review Committee to finalize the Prospectus for conducting centralized counselling for admission to MBBS/BDS courses in Government Medical/Dental Colleges including Private Medical/Dental Colleges (State/Management Quota) situated in the State of Himachal Pradesh on the basis of their marks/ranks in NEET-UG- 2018 for the academic session 2018-19. The Committee, on having considered various provisions in the Prospectus had decided to remove the provision from the Prospectus governing exemption to children of employees of private sector/private occupation from the condition of passing two examinations out of four from the schools situated in Himachal Pradesh. 4. The recommendations made by the Committee were considered and approved by the competent authority and thereafter the Prospectus Annexure P-11 was published.
4. The recommendations made by the Committee were considered and approved by the competent authority and thereafter the Prospectus Annexure P-11 was published. Although, exemption from the condition of passing two examinations to category of the petitioners came to be deleted from the prospectus yet, at certain places therein the same got reflected by way of an inadvertent mistake. On noticing such mistakes in the Prospectus, the Corrigendum Annexure P-10 and Corrigendum-II Annexure P-12 came to be issued on the very next day of the publication of the Prospectus i.e. 13.6.2018. 5. The specific stand of the respondent-State, therefore, is that there is no provision in the Prospectus published for the academic session 2018-19 providing exemption from the condition of passing two examinations out of four from the Schools situated in Himachal Pradesh in favour of the category of the petitioners being already stood deleted, therefore, they cannot be heard of any complaint of allegedly arbitrarily debarred from seeking admission against State Quota seats in MBBS/BDS courses from the Government/private colleges situated in the State of Himachal Pradesh. 6. The note below item No. XXIV in the Prospectus reserves the right in favour of respondent-State to make any change/amendment in the Prospectus and that the same shall be binding on the students. The two corrigendums issued by the respondent-State making corrections in the Prospectus, therefore, has been claimed to be legal and valid. When the substantial provision providing exemption to the employees of the private sector/the persons in private occupation outside the State stood withdrawn from the Prospectus, issued on 12.6.2018, therefore, issuance of the corrigendum on the very next date i.e. 13.6.2018 to correct certain inadvertent clerical errors is neither illegal nor un-constitutional. Even if the two corrigendums are withdrawn, in that event also the petitioners would not be eligible for admission because the Prospectus issued on 12.6.2018 did not contain any exemption clause in favour of their category which already stood deleted on the recommendation of the Prospectus Review Committee. 7. The respondent-State, while prescribing the eligibility criteria for seeking admission for MBBS/BDS courses in the State from 1995-96 onwards, had taken a conscious decision after taking into consideration various aspects like topography of the State, social status, financial and economic conditions of the people and educational facilities had ensured that the students from the State get a chance of seeking admission in such courses.
An effort has been made to bring them to compete with the students having studied in better institutions outside the State with better facilities and exposure. The fact that the students of this State were not getting medical education outside the State and as regards medical/dental colleges situated in the State, it is the students belonging to and studied in other States/Universities and Colleges managed to get admissions in MBBS/BDS courses in the State, therefore, the condition of passing at least two examinations out of four at school level was prescribed long back in the year 1995-96. The decision so taken was held as legal and valid even by a Division Bench of this Court also in Gagandeep v. State of H.P. and connected matters, (1996) 1 S.L.C. 242 . The exemption from passing such two examinations from the schools situated in the State of Himachal Pradesh in favour of the category of the petitioners was for the first time introduced in the year 2013-14 and the same now stands withdrawn from this academic session being not giving a level playing field to the students who have done their schooling from the State of Himachal Pradesh. 8. The provisions qua prescribing the condition of passing two examinations out of four from the schools situated in the State of Himachal Pradesh except for in CWP No. 1414 of 2018 is not under challenge in these writ petitions and rightly so because such eligibility criteria has been held legal and valid by a Division Bench of this Court in Gagandeep''s case (supra). 9. It is in this backdrop, we have heard Mr. Sunil Mohan Goel, Advocate assisted by S/Sh. K.B. Khajuria, Raman Jamalta, Vinod Chauhan, Pardeep K. Sharma, Vivek Singh Thakur, Rajiv Rai and Adarsh K. Vashisht, Advocates on behalf of the petitioners, whereas Sh. Ashok Sharma, learned Advocate General assisted by Mr. Ajay Vaidya, learned Sr. Addl. Advocate General, Sh. Vikas Rathore and Sh. Narinder Singh Guleria, learned Addl. Advocate Generals for the State and Sh. Neel Kamal Sharma, Advocate standing counsel for the Himachal Pradesh University at length to dispose of these writ petitions finally.
Ashok Sharma, learned Advocate General assisted by Mr. Ajay Vaidya, learned Sr. Addl. Advocate General, Sh. Vikas Rathore and Sh. Narinder Singh Guleria, learned Addl. Advocate Generals for the State and Sh. Neel Kamal Sharma, Advocate standing counsel for the Himachal Pradesh University at length to dispose of these writ petitions finally. However, as the another exempted category i.e. children of serving/retired employees of Central Government/UTs/Other State Governments and children of the employees of the Autonomous Organizations/semi-Government bodies of Central Government/UT/Other State Governments being allegedly similarly situated to the petitioners and as the candidates belonging to the above exempted category are not before us, hence without affording them due opportunity of being heard, the question of legality and validity of the exemption so granted to them cannot be decided judiciously and authoritatively, it is deemed appropriate not to dispose of these writ petitions finally and at this stage advert only to the eligibility of the petitioners herein and the students belonging to the abovesaid another category allegedly similarly situated to appear for counselling scheduled to be held from 29th June, 2018 onwards. 10. In order to decide the above question, it is deemed appropriate to refer the provisions in vogue providing exemption to the category of the petitioners from the academic session 2013-14 onwards till 2017-18. The Prospectus for the year 2013-14 is Annexure P-4. Item No. IV under the head "ELIGIBILITY AND QUALIFICATIONS" therein reads as follows: " IV. ELIGIBILITY AND QUALIFICATIONS (A) For State Quota Seats : 1. Children of Bonafide Himachali/Himachal Govt. employees and employees of autonomous bodies wholly or partially financed by the Himachal Pradesh Government will only be eligible to apply for admission to MBBS/BDS Courses through Counseling on the basis of State merit of NEET(UG)- 2013 in Government Medical/Dental Colleges including 50% State Quota seats in Private unaided Dental Colleges situated in Himachal Pradesh. They should have passed atleast two of the following examinations from the recognized schools or colleges situated in the State of Himachal Pradesh and affiliated to ICSE/CBSE/H.P. Board of School Education or equivalent Boards/Universities established by law in India. (a) Middle or equivalent (b) Matric or equivalent (c) 10+1 or equivalent (d) 10+2 or equivalent 2.
They should have passed atleast two of the following examinations from the recognized schools or colleges situated in the State of Himachal Pradesh and affiliated to ICSE/CBSE/H.P. Board of School Education or equivalent Boards/Universities established by law in India. (a) Middle or equivalent (b) Matric or equivalent (c) 10+1 or equivalent (d) 10+2 or equivalent 2. The Bonafide Himachali students who are admitted to Navodya Schools situated in Himachal Pradesh and who have passed matric or +2 examinations under the exchange programme from other Navodya Schools in the Country shall also be eligible for admission to the above courses. 3. Following categories of candidates are exempted from the condition of passing the examinations from recognized schools affiliated to ICSE/CBSE/HP Board of School Education and situated within Himachal Pradesh provided that the candidates of these categories should be Bonafide Himachali and their parents are living outside Himachal Pradesh on account of their service/posting/private occupation. In such cases, non-schooling in Himachal Pradesh shall not debar them from competing against any of the seats whether reserved or otherwise (except backward area seats):- (i) Children of Defence Personnel/Ex-Servicemen (ii) Children of serving/retired Employees of Central Government/U.T./Other State Governments and Children of Employees of the Autonomous Organizations/Semi Government Bodies of Central Government/U.T./Other State Governments. (iii) Children of employees of Himachal Government/H.P. Govt. Undertaking/Autonomous Bodies wholly owned H.P. Govt. (iv) Children of employees of Private Sector/Private occupation. Note : (1) The candidates claiming exemption from passing two examination from the schools situated in Himachal Pradesh under the category (iv) mentioned above, should have passed their schooling from the schools situated in the place/station where their parents are residing. (2) The Candidates claiming exemption from passing two exams from H.P School(s) under the categories as mentioned in sub clauses (ii) & (iv) above of Clause 3 shall also submit a certificate on the prescribed format as given in the prospectus at Appendix A-11, A-12, A- 13 & A-14 with the application form in original, as applicable." 11. As already pointed out, these provisions remained as it is in the Prospectus for admission to MBBS/BDS courses till the academic session 2017-18.
As already pointed out, these provisions remained as it is in the Prospectus for admission to MBBS/BDS courses till the academic session 2017-18. It is in the current academic session, a decision was taken not to provide exemption to the children of the employees of private sector/the persons in private occupation outside the State, therefore, item No. IV (A) 3 (iv) i.e. "children of employees of private sector/private occupation" came to be deleted from the Prospectus Annexure P-11, however, the words "private occupation" figuring in Clause 3 supra and note (1) below it i.e. "The candidates claiming exemption for passing two examination from the schools situated in Himachal Pradesh under the category (iv) as mentioned above, should have passed their schooling from the schools situated in the place/station where their parents are residing." remained as it is therein. Consequently, the Corrigendum Annexure P-10 whereby Note (1) supra and Corrigendum II Annexure P-12 words "Private Occupation" stood deleted came to be issued on 13.6.2018. In view of such deletion in the Prospectus Annexure P-13 for the academic session 2018- 19, now no provision exists qua providing exemption from the condition of passing two examinations out of four from the schools situated in the State of Himachal Pradesh in favour of the category of the petitioners. The modified provisions qua eligibility in the Prospectus Annexure P-13 now reads as follows: "IV. ELIGIBILITY AND QUALIFICATIONS (A) For State Quota Seats : 1. Children of Bonafide Himachali/Domicile/Himachal Govt. employees and employees of autonomous bodies wholly or partially financed by the Himachal Pradesh Government who qualified the NEET-UG-2018 will only be eligible to apply ONLINE for admission to MBBS/BDS Courses through counselling in Government Medical/Dental Colleges including State Quota seats in Private un-aided Medical/Dental Colleges situated in Himachal Pradesh. They should have passed at least two exams out of the following examinations from the recognized schools or colleges situated in the State of Himachal Pradesh and affiliated to ICSE/CBSE/H.P. Board of School Education or equivalent Boards/Universities established by law in India. (a) Middle or equivalent (b) Matric or equivalent (c) 10+1 or equivalent (d) 10+2 or equivalent 2. The Bonafide Himachali students who are admitted to Navodya Schools situated in Himachal Pradesh and who have passed matric or +2 examinations under the exchange programme from other Navodya Schools in the Country shall also be eligible for admission to the above courses. 3.
The Bonafide Himachali students who are admitted to Navodya Schools situated in Himachal Pradesh and who have passed matric or +2 examinations under the exchange programme from other Navodya Schools in the Country shall also be eligible for admission to the above courses. 3. Following categories of candidates are exempted from the condition of passing the examinations from recognized schools affiliated to ICSE/CBSE/HP Board of School Education and situated within Himachal Pradesh, provided that the candidates of these categories should be Bonafide Himachali and their father/mother are living outside Himachal Pradesh on account of their service/posting/private occupation. In such cases, nonschooling in Himachal Pradesh shall not debar them from competing against any of the seats whether reserved or otherwise (except backward area seats):- (i) Children of Defence Personnel/Ex-Servicemen. (ii) Children of serving/retired employees of Central Government/U.T./Other State Governments and Children of employees of the Autonomous Organizations/Semi Government Bodies of Central Government/U.T./Other State Governments. (iii) Children of employees of Himachal Government/H.P. Govt. Undertaking/Autonomous Bodies wholly owned by H.P. Government. Note : (1) Candidates claiming exemption for passing two exams from H.P School(s) under the categories as mentioned in sub-clauses (ii) & (iii) above of clause -3 shall also submit a 18 certificate on the prescribed format as given in the prospectus at Appendix A-12, A-13 with the application form in original, as applicable. (2) The merit list of qualified candidates of NEET-UG-2018 who applied online to the University within stipulated period will only be drawn by the University and candidates those will not found qualified in NEET, their application forms will be rejected without any notice and names of such candidates shall not be included in the merit list. The application fee shall not be refunded in any case." 12. In this view of the matter, the provisions regarding exemption to the category of the petitioners ceased to exist on 12.6.2018 on deletion of the category of the petitioners i.e. Clause No. 3(iv) below item No. IV (A) in the Prospectus Annexure P-13, issued for the academic session 2018-19 published on 12.6.2018. The date, as per schedule for submission of online applications also commenced on 12.6.2018 itself, which had to continue up to 20.6.2018.
The date, as per schedule for submission of online applications also commenced on 12.6.2018 itself, which had to continue up to 20.6.2018. On the very next day i.e. 13.6.2018, even words "private occupation" in Clause 3 of item No. IV(A) and also Note (1) below it in the Prospectus (Page 17) came to be omitted by way of Corrigendums Annexures P-10 and P-12. Meaning thereby that after 13.6.2018, there hardly remained any provision in the Prospectus providing exemption to the category of the petitioners, hence, these writ petitions. 13. Prima-facie, we are satisfied that in the Prospectus Annexure P-11 initially issued for the academic session 2018-19, the category of the petitioners does not find mention on deletion of clause 3 (iv) of item No. IV (A) thereof. Being so, merely that in clause 3 words "private occupation" figured and note(1) also came to be reflected in the Prospectus Annexure P- 11, the petitioners prima-facie are not justified in claiming that they have a right to avail the exemption which the students in their category had earlier been availing for the reason that their category has already been deleted from the Prospectus Annexure P-11 initially issued for the current academic session. The reflection of words "private occupation" and Note (1), to our mind, is the result of either clerical mistake or inadvertent mistake. Anyhow, such reflection in clause 3 and note (1) also came to be deleted vide Corrigendum Annexures P-10 and P-12. In view of the note below item No. XXIV of the Prospectus, Annexure P-13, the respondent-State and for that matter University, as the case may be, has the right to make any change/amendment in the Prospectus and that the same shall be binding on the students. In view of the deletion of the main provisions from the Prospectus, words "private occupation" and Note (1) supra came to be omitted in the Prospectus Annexure P-11 initially issued for the academic session 2018-19 by way of mistake. Such mistakes in view of the judgment of the Supreme Court in Union of India and another v. Narendra Singh, 2008 (2) SCC 750 , can be corrected and even if such correction may be harsh to a party. 14.
Such mistakes in view of the judgment of the Supreme Court in Union of India and another v. Narendra Singh, 2008 (2) SCC 750 , can be corrected and even if such correction may be harsh to a party. 14. Now, if coming to the records, the decision to delete the exemption from passing two school examinations out of four from the school situated in the State of Himachal Pradesh, was already taken on 9.6.2018 by the competent authority on the basis of the report of the Prospectus Review Committee. Therefore, on this score also, we are primafacie satisfied that the petitioners were not taken to surprise because Prospectus forwarded for publication on 11.6.2018 was published on 12.6.2018, no doubt on that very day when submission of the online applications for seeking admission commenced. We are also satisfied prima-facie that providing such exemption to the category of the petitioners from the condition of passing two examinations from the schools situated in the State at the cost of socially and economically backward students of this State, where in the name of Coaching Centres etc. having no such facility and irrespective of adverse circumstances secure good ranking in the test is rather harsh and oppressive to them and not to the petitioners who in our opinion may take chance to seek admission in the States where their parents are residing in connection with their job in private sector or private occupation. Since number of bonafide Himachalies are residing outside the State in connection with their job in private sector/private occupation, therefore, providing exemption from passing two examinations out of four from the schools situated in the State of Himachal Pradesh would negate the same and oust the students of this State from competition because it is not possible to the students of this State to compete with the students having studied in the schools outside the State with better facilities and infrastructure. Above all, the condition of passing atleast two examinations out of the four from the schools/colleges situated in the State has nexus with the object sought to be achieved because hospitals in the State of Himachal Pradesh are situated in remote areas, including tribal belt where only the Himachali graduated doctors can render their services and as regards the outsiders, normally they run away from the State being not accustomed with the prevailing weather conditions in such areas. 15.
15. In this view of the matter, though we may have finally decided the question qua admissibility of the relaxation to the category of the petitioners in the light of the arguments addressed and the case law cited at Bar, however, existence of clause 3(ii) under Item No. IV(A), which appears to have been introduced for the first time in the year 2012-13, providing exemption from the condition of passing two examinations out of four from the schools or colleges situated in the State of Himachal Pradesh to the children of serving/retired employees of the Central Government/UT/Other State Governments and children of employees of the Autonomous Organizations/Semi-Government Bodies of Central Government/UT/Other State Governments, has engaged our attention and prima-facie this category is similar to that of the petitioners, therefore, to our mind allowing exemption to the students of this category may not amount to create a class within class itself, which perhaps is not legally permissible. As a matter of fact, children of such employees/workers and for that matter those who are in private occupation outside are better placed in the matter of their studies as compared to the students who are residing in the State and studying in the schools/colleges situated here for the reason that outside the State, there exist good coaching institutions and facilities of tuition available which, however, not available to the students of this State, particularly to those who hails from remote rural areas of this State. 16. The case pleaded before us on behalf of the petitioners that the persons allegedly similarly situated i.e. the children of serving/retired employees of the Central Government/UT/Other State Governments and children of employees of the Autonomous Organizations/Semi-Government Bodies of Central Government/UT/Other State Governments, are still enjoying the benefit of exemption from the condition of passing two examinations from the schools situated in the State of Himachal Pradesh., prima-facie, carry force and as students of this category if in merits are likely to participate in the counselling for admission to the course scheduled to be held on and w.e.f. 29.6.2018, the point so raised in these writ petitions and agitated during the course of arguments also need adjudication because in case ultimately the category of Central Government/other State Government employees is not held entitled to the concession, they also cannot occupy the seats in our Medical/Dental colleges at the cost of the students of this State. 17.
17. Our difficulty at this stage, however, is that neither the candidates belonging to this category are before us nor the State has yet controverted the point that allowing exemption to the children of this category is discriminatory to the petitioners raised in the these petitions by them, hence cannot be adjudicated at this stage authoritatively. Therefore, it is not deemed appropriate to dispose of these writ petitions at this stage and rather keep the same alive for being considered further on the question of justification of providing exemption vide clause 3(ii) under item No. IV(A) to the children of serving/retired employees of the Central Government/UT/Other State Governments and children of employees of the Autonomous Organizations/Semi-Government Bodies of Central Government/UT/Other State Governments after taking on record the version of the respondents and also the impleadment of the candidates, if any, from this category, in merit and eligible to appear in the counselling. 18. Our anxiety, at this stage, however, is as to whether the petitioners should also be allowed to appear in the counselling, if otherwise eligible and in merit or not. When the eligible and qualified children, if any, belonging to the category of children of serving/retired employees of the Central Government/UT/Other State Governments and children of employees of the Autonomous Organizations/Semi-Government Bodies of Central Government/UT/Other State Governments, may appear in the counselling, allowing the petitioners also if otherwise in merit and qualified to appear in the counselling of course, without any right of claiming admission in the Course would serve the ends of justice. Being so, by way of purely as interim arrangement, we restrict the claim to appear in counseling in favour of the petitioners alone from their category and to allow only to those petitioners who have submitted their applications either online or in terms of the interim order passed in some of these writ petitions well within the time schedule i.e. during the period from 12.6.2018 to 20.6.2018 and otherwise is/are in merits which shall be provisional for all intents and purposes and will not create any right in their favour to get admitted in the Course.
However, no candidates from the category of the petitioners and of exempted category under clause 3(ii) of item IV (A) i.e. serving/retired employees of the Central Govt./UT/other State Governments and children of employees of the autonomous organizations/Semi-Government bodies of Central Govt./UT/other State Governments, shall be admitted to the course without the leave of the Court. The respondents/Counselling Committee are also directed to notify the pendency of these writ petitions along with the next date of hearing and to bring gist of this order to the notice of the candidates appearing in counseling from the category of the petitioners and also from that of the exempted category in terms of clause 3(ii) of item No. IV (A) to the prospectus. 19. The respondents shall check up the records i.e. the applications for admission, if any, received online within the stipulated period from the candidates belonging to exempted category as per clause 3(ii) of Item No. IV (A) for appearance in counselling and supply their particulars i.e. names, parentage, roll numbers and complete addresses etc. in the Registry of this Court within three days so that they either at their own seek their impleadment or are impleaded as party-respondents in the main matter i.e. CWP No. 1353 of 2018 and heard before these writ petitions are finally disposed of. The respondent-State shall also file its response justifying such exemption granted in favour of the children of this category and the object sought to be achieved thereby. 20. The respondent-State shall also place on record by way of affidavit on the next date the data i.e. the numbers of students admitted in MBBS/BDS courses out of the category of the petitioners during the academic session 2013-14 onwards up to 2017-18 when the provision qua exemption to this category remained in force. Similarly, the information qua number of students admitted in these courses during the academic session 2012-13 up to 2017-18 from the exempted category under clause 3 (ii) of item No. IV (A) of the Prospectus be also indicated in the affidavit. 21. We make it clear that any observation made hereinabove shall remain confined to decide the admissibility of interim relief i.e. the grant of permission to the petitioners to appear in the counselling provisionally and shall have no bearing on the merits of the case to be determined after hearing the parties on both sides in the light of this order.
We make it clear that any observation made hereinabove shall remain confined to decide the admissibility of interim relief i.e. the grant of permission to the petitioners to appear in the counselling provisionally and shall have no bearing on the merits of the case to be determined after hearing the parties on both sides in the light of this order. List on 3.7.2018 . CWP No. 1414 of 2018 delinked. An authenticated copy of this order be supplied to the learned standing counsel for the University as also the learned Advocate General today itself.