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2018 DIGILAW 1205 (HP)

Sahil Prashar v. State Of H P And Ors

2018-07-03

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT Dharam Chand Chaudhary, J. - Counseling for MBBS/BDS courses consequent upon declaration of the result of the National Eligibility-cum- Entrance Test (UG2018) (NEET-UG-2018) is being conducted these days. The petitioner allegedly a bonafide Himachali, however, having not passed two examinations out of the four indicated below item No. IV (A) 1 under the head "Eligibility and Qualifications" on declaration of the result has applied online vide application Annexure P-8 for admission against the State Quota seats i.e. 85%. His application has, however, been rejected and he has not been called for counseling. He has, therefore, filed the present writ petition on the grounds inter alia that the condition of passing two examinations out of 4 from the Schools situated within the territory of Himachal Pradesh is not only unreasonable, illegal and discriminatory but un-Constitutional also. According to him, when the State is not able to provide employment to all its citizens within the territory of Himachal Pradesh, making provision of such criteria is arbitrary and illegal. According to him, under compulsion he had to undergo his studies in 8th and 10th standard from Sofia Convent School situated on ChandigarhShimla road at Kalka in Haryana. He passed his 10+1 and 10+2 examinations from DAV Senior Secondary School, Panchkulla, H.P. His father was unemployed and as such, the family including the petitioner was dependent upon his grandfather, initially a Hawker at Panchkulla, Kalka and Parwanoo and subsequently started running General Merchant Shop in rented accommodation at Kalka. The family for some time resided at Kalka and sometimes in Parwanoo in rented accommodation. His father has now purchased a house at Parwanoo in the year 2013. The said house could only be furnished during the year 2015-16 and now the family has finally shifted there. His father was appointed as B.Ed. teacher on contract basis in the year 2003 and posted, as such, at Jogindernagar in District Mandi. The family including the petitioner could not be shifted there in view of meager salary of his father. Therefore, it is under these circumstances, the petitioner did his schooling from the schools situated at Kalka and Panchkulla (Haryana). 2. teacher on contract basis in the year 2003 and posted, as such, at Jogindernagar in District Mandi. The family including the petitioner could not be shifted there in view of meager salary of his father. Therefore, it is under these circumstances, the petitioner did his schooling from the schools situated at Kalka and Panchkulla (Haryana). 2. The application registered as CMP No. 5791 of 2018 has been filed along with the Writ Petition for a direction to the respondents to allow the petitioner to appear for counseling, however, in view of the judgment of this Court in Gagan Deep vs. State & connected matters , (1996) 1 ShimLC 242 and on hearing learned counsel representing the petitioner and learned Advocate General for the respondent-State, the prayer for interim relief was declined. 3. Since the judgment of this Court in Gagan Deep''s case has attained finality and as nothing to the contrary has been brought to our notice by learned counsel representing the petitioner, therefore, the respondents have not intended to file response nor the same is required. 4. On hearing learned counsel for the petitioner at length and also Sh. Ashok Sharma, learned Advocate General assisted by Sh. Narinder Guleria and Sh. Vikas Rathore, learned Addl. Advocate Generals, it would not be improper to conclude that the petitioner is not entitled to the relief sought in this writ petition for the reason that the condition of two examinations was introduced as one of the eligibility conditions by the respondents long back during the academic session 1994-1995. Such eligibility criteria under item No. IV (A) 1 in the Prospectus (Annexure P-5) for the academic session 2018-19, 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. 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" 5. A Division Bench of this Court in Gagandeep''s case cited supra has held as under: "18. Looking to the material placed before us and the contentions of the learned Counsel for the parties, it is clear that students studying in the Schools, Institutions, Colleges situated in the State of Himachal Pradesh form a separate class while the students falling to the category of the petitioners, form a distinct class. Contention that there are many good Schools in Shimla and a few other places with good educational facilities, is hardly convincing. Assuming that there are some such schools, they are far behind the schools outside the State. Moreover, they can be counted on finger tips. Except for bare contention, no material has been placed before us to assess the standard of education and the percentage of appearance and selection to the Medical Courses. A few schools cannot be made the basis for assuming that the standard of education in all the School, Institutions and Colleges in the State is as high as in Schools, Institutions and Colleges located outside the State. What is the requirement of the State which maintains the Medical Colleges and what should be the sources of recruitment for admission, is primarily for the State to decide. The eligibility criteria has to be the result of the past experience and the requirement of the State. Of course, the State action should not transgress. 19. Second facet of this question is whether laying down of this kind of criteria is constitutionally permissible; whether it is arbitrary and unjust causing hardship to the petitioners? We answer all these questions against the petitioners. By now, such kind of reservations have been held constitutionally permissible in series of decisions by the apex Court and this Court. Similarly, question of hardship or that the State could have extended this kind of benefit to the candidates passing these examinations from the Institutions and Colleges situated in Himachal Pradesh in a different and better way, do not make the provision unconstitutional, unjust or harsh. .. .. Similarly, question of hardship or that the State could have extended this kind of benefit to the candidates passing these examinations from the Institutions and Colleges situated in Himachal Pradesh in a different and better way, do not make the provision unconstitutional, unjust or harsh. .. .. .. 27. The third facet for sustaining the eligibility is equally efficacious when it is pointed out by the respondents that although quite a large number of persons have qualified medical degree from the State Medical College, yet people are deprived of medical facilities in rural and far flung areas of the State since the doctors do not want to go to such areas and they flee the State to avoid postings in such areas. Although bond amount has been increased, yet that has not given the desired results. State Government is spending lacs of rupees on a student for doing the medical course but the amount is going into the drawings since they are not prepared to remain in the State and serve the people. 28. The fourth facet is about the arbitrariness, un-justness and hardship being caused to the petitioners by the eligibility criteria. Having up-held the institutional preference and accepting the submission of the learned Advocate General that the candidates studying in Schools, Colleges and Institutions situated in the State of Himachal Pradesh form a separate category and are entitled to protection to enable the them to secure and admissions in the medical institutions as compared to the petitioners and similarly placed candidates falling in different group with better facilities and chances to appear in the institutions located in the States they are studying, nothing much remains for examination of this question, more particularly, in view of the latest decision of the apex Court reported in of Anant Madaan Vs State of Haryana and others , (1995) 2 SCC 135 upholding reservation of 85 percent seats to MBBS/BDS courses on the basis of candidate''s education for preceding three years in the state and rejecting the contention of the reservation being arbitrary, discriminatory and causing hardship. It is necessary to quote paras 8 and 9 of this judgment: "8.In view of the above facts, we have to consider whether the condition requiring a candidate to have studied in 10th and 10+2 classes in a recognized Institute in Haryana, can be considered as arbitrary or unreasonable. It is necessary to quote paras 8 and 9 of this judgment: "8.In view of the above facts, we have to consider whether the condition requiring a candidate to have studied in 10th and 10+2 classes in a recognized Institute in Haryana, can be considered as arbitrary or unreasonable. It is by now well settled that preference in admissions on the basis of residence, as well as institutional preference, is permissible so long as there is no total reservation on the basis of residential or institutional preference. As far back as in basis 1955, in the case of D.P Joshi Vs. State the of Madhya Bharat, this Court making a distinction between the place of birth and residence, upheld a preference on the basis of residence in educational institutions." "9. In the case of Jagdish Saran (Dr.) v. Union of India, this Court reiterated that regional preference or preference on the ground of residence in granting to medical colleges was not arbitrary or unreasonable so long as it was not a wholesale reservation on this basis. This Court referred to various reasons of why such preference may be required. For example, the residents of a particular region may have very limited opportunities for technical education while the region may require such technically qualified persons. Candidates who were residents of that region were more likely to remain in the regions and serve their regions if they were preferred for admission to technical institutions in the State, particularly medical colleges. A State which was short of medical personnel would be justified in giving preference to its own residents in medical colleges as these residents, after qualifying as doctors, were more likely to remain in the State and give their services to their State. The Court also observed that in the case of women students, regional or residential preference may be justified as their parents may not be willing to send them outside the State for medical education. We, however, need not examine the various reasons which have impelled this Court to uphold residential or institutional preference for admission to medical colleges. The question is settled by the decision this Court in Pradeep Jain (Dr) Vs. Union of Inida. We, however, need not examine the various reasons which have impelled this Court to uphold residential or institutional preference for admission to medical colleges. The question is settled by the decision this Court in Pradeep Jain (Dr) Vs. Union of Inida. This Court has observed in that judgment: (SCR p. 981: SCC p. 687, para 19): We are, therefore, of the view that certain percentage of reservation on the basis of residence requirement may legitimately be made in order to equalize opportunities for medical admissions on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutional reservation for students passing the PUC or pre-medical examination of the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical college in the State .." This Court held in that case that reservation to the extent of 70%, on this basis would be permissible. This percentage of reservation was subsequently increased to 85% by this Court in the case of Dinesh Kumar (Dr) Vs. Motilal Nehru Medical College. This Court in that case directed an entrance examination on an allIndia basis for the remaining 15% of seats." Consequently, all the submissions raised by the petitioners on this aspect of the case are rejected." 6. Even in the order dated 29.6.2018 passed by this Court in CWP No. 1353 of 2018 titled Shivam Sharma Vs. State of H.P. & ors and its connected matters, the following observations qua this aspect of the matter has been made: "5. 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. 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 vs. State of H.P. and connected matters , (1996) 1 ShimLC 242 . .. 6. 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 ." 7. The law so laid down has attained finality as learned counsel representing the petitioner has failed to bring to our notice any decision contrary to the decision of this Court in Gagan Deep''s case, cited supra. 8. In Dr. Kriti Lakhina & ors. Vs. State of Karnataka & ors.,2018 SCCOnline(SC) 324, the following criteria for seeking admission in Post Graduate Courses was under challenge: "2.1. No candidate shall be admitted to a professional educational institution unless the candidate possesses the following qualifications or eligibility to appear for the entrance test namely: (a) He is a citizen of India who is of Karnataka origin and has studied MBBS/BDS degree in a medical/dental college situated in Karnataka or outside Karnataka, and affiliated to any university established by law in India recognized by Medical Council of India and the Government of India." 9. The above criteria was quashed and set aside by the Hon''ble Apex Court being violative of Article 14 of the Constitution of India with the observation that the same if allowed to remain in force and made applicable for seeking admission to Post Graduate Medical Courses would amount to compromise with the excellence besides being detrimental to the interest of the Nation also. The relevant extract of this judgment reads as follows: "13. Relying on the aforesaid reasons in Jagadish Saran v. Union of India, a three-Judge Bench of this Court in Pradeep Jain case held that excellence cannot be compromised by any other consideration for the purpose of admission to postgraduate medical courses such as MD/MS and the like because that would be detrimental to the interests of the nation and therefore reservation based on residential requirement in the State will affect the right to equality of opportunity under Article 14 of the Constitution ." In Magan Mehrotra v. Union of India and Saurabh Chaudri v. Union of India also, this Court has approved the aforesaid view in Pradeep Jain case that excellence cannot be compromised by any other consideration for the purpose of admission to postgraduate medical courses such as MD/MS and the like because that would be detrimental to the interests of the nation and will affect the right to equality of opportunity under Article 14 of the Constitution. 11. Mr Mariarputham is right that in Saurabh Chaudri v. Union of India this Court has held that institutional preference can be given by a State, but in the aforesaid decision of Saurabh Chaudri, it has also been held that decision of the State to give institutional preference can be invalidated by the court in the event it is shown that the decision of the State is ultra vires the right to equality under Article 14of the Constitution. When we examine sub-clause (a) of Clause 2.1 of the two Information Bulletins, we find that the expression "A candidate of Karnataka origin" who only is eligible to appear for entrance test has been so defined as to exclude a candidate who has studied MBBS or BDS in an institution in the State of Karnataka but who does not satisfy the other requirements of sub-clause (a) of Clause 2.1 of the Information Bulletin for PGET-2014. Thus, the institutional preference sought to be given by subclause (a) of Clause 2.1 of the Information Bulletin for PGET-2014 is clearly contrary to the judgment of this Court in Pradeep Jain case. 12. To quote from para 22 of the judgment in Pradeep Jain case: (SCC p. 693) "22. Thus, the institutional preference sought to be given by subclause (a) of Clause 2.1 of the Information Bulletin for PGET-2014 is clearly contrary to the judgment of this Court in Pradeep Jain case. 12. To quote from para 22 of the judgment in Pradeep Jain case: (SCC p. 693) "22. a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the postgraduate course in the same medical college or university ." 13. Sub-clause (a) of Clause 2.1 of the two Information Bulletins does not actually give institutional preference to students who have passed MBBS or BDS from colleges or universities in the State of Karnataka, but makes some of them ineligible to take the entrance test for admission to postgraduate medical or dental courses in the State of Karnataka to which the Information Bulletins apply." 10. The Apex Court, therefore, has emphasized that for seeking admission to Post Graduate Medical Courses any such criteria should not be followed. The present, however, is not the case of seeking admission to Post Graduate Medical Courses and rather in MBBS/BDS courses. Therefore, the ratio of this judgment is hardly of any help to the case of the petitioner. 11. Being so, since the petitioner has not passed two examinations out of the four as indicated hereinabove from the schools situated in the State of Himachal Pradesh and is also not entitled to any exemption under clause 2 & 3 of item No. IV (A), therefore, he cannot seek admission against State quota seats i.e. 85%. The writ petition, being devoid of any merits, as such, is dismissed so also the pending application(s), if any.