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2019 DIGILAW 819 (HP)

Abhinandan Sharma v. State of H. P.

2019-06-28

DHARAM CHAND CHAUDHARY, SURESHWAR THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. (Oral) CMP No. 5816/2019 in CWP No. 1416/19 CMP No. 5820/2019 in CWP No. 1417/19 CMP No. 5822/2019 in CWP No. 1418/19 CMP No. 5824/2019 in CWP No. 1419/19 Allowed and disposed of. CWP No. 1416 of 2019 CWP No. 1417 of 2019 CWP No. 1418 of 2019 CWP No. 1419 of 2019 Notice. Mr. Ajay Vaidya, learned Senior Additional Advocate General appears and accepts service of notice on behalf of respondents No. 1 and 2-State and Ms. Manjula Kumari, Advocate vice Mr. Neel Kamal Sharma, Advocate on behalf of respondent No.3- University. 2. The petitioner in these cases have approached this Court with identical set of prayers, therefore, one set of prayers is extracted below:- ?(i) That this Hon'ble Court may kindly be pleased to issue writ of mandamus directing the respondents to include the category of the petitioner i.e. children of Private Sector Employees of bonafide Himachali as eligible to compete for 85% State Quota especially in view of the judgment passed by this Hon'ble Court dated 13.07.2018 and 31.07.2018, and further hold the action of the respondent of not including the category of the petitioner in the prospectus-cumapplication form as bad in law. (ii) That this Hon'ble Court may kindly be pleased to issue a writ of certiorari quashing Clause IV(A) 2(iv) of the Prospectus and application Form 2019- 20 whereby children of bonafide Himachali who are working with Central Government/Undertaking or Autonomous bodies established by the Central Government are being given benefit of 85% State Quota Seats, with the further direction by issuing writ of mandamus directing the respondent that in case children of Central Government employees are to enlarge the benefit of 85% State Quota then the petitioner category may also be included in the same. (iii) That this Hon'ble Court may further direct the respondents to allow the petitioner to apply for online application before 29.06.2019 and participate in counselling scheduled from 5.7.2019 to 11.07.2019 (and thereafter) for admission to MBBS/BDS courses for the academic session 2019-20 in IGMC Shimla/ Dr. RPGMC Tanda at Kangra and other medical and dental colleges being offered by Government and private medical and dental courses.? 3. RPGMC Tanda at Kangra and other medical and dental colleges being offered by Government and private medical and dental courses.? 3. The points in issue in these writ petitions came up for consideration before this Court in a bunch of writ petitions, lead case whereof was CWP No. 1353 of 2018 titled Shivam Sharma V. State of H.P., decided on 13.07.2018, (Annexure P-5 to CWP No. 1417 of 2019) with the following observations:- ?30. We find the present a case where dropping the category of petitioners from Prospectus for the purpose of the exemption is on the basis of reasonable classification because the category of the petitioners and the exempted category 3(ii) are distinct and separate and there is rationale relationship between such classification and the object sought to be achieved by deletion of category 3(iv) and Note 1 appended below it. The classification is based upon various considerations like topography of the State, socio-economic condition of the people, scarcity of good schools, tutors and coaching centres for the children studying in the schools situated in the State and that the meritorious Himachali children gets a chance of admission in the MBBS/BDS courses to serve the State. The paramount consideration, of course, is to provide better medical facilities to the people of the State, especially in snow bound and remote areas. Therefore, there is a nexus between the basis of such classification and the object i.e. dropping the provisions in the Prospectus qua providing exemption to the category of the petitioners, sought to be achieved. 31. It is held by the Hon'ble Apex Court in Transport and Dock Workers Union & ors. Vs. Mumbai Port Trust & anr., (2011) 2 SCC 575 , that differential treatment always does not amount to violation of Article 14 of the Constitution. It violates the same only when there is no reasonable basis for the differentiation. Since, as noticed supra, the exclusion of the category of the petitioners from exemption is based on intelligible differentia and there is a nexus between such exclusion and the object sought to be achieved, therefore, there is no question of violation of Article 14 of the Constitution of India in this case. Support in this regard can be drawn from the judgment of the Apex Court in Shayara Bano vs. Union of India & ors. & connected petitions, (2017) 9 SCC 1 . Support in this regard can be drawn from the judgment of the Apex Court in Shayara Bano vs. Union of India & ors. & connected petitions, (2017) 9 SCC 1 . The relevant text thereof reads as follows: ?101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641 , stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.? 32. True it is that it is not possible to the State to provide employment to all, however, those who are residing outside the State in connection with their service in private sector or being in private occupation, must also know that their children can seek admission in the Medical/Dental colleges situated in the State only on having passed two examinations out of the four mentioned below clause 1 of item IV(A) of the Prospectus. Therefore, their children like the children of those who are permanently residing in the State can also pass two examinations from the schools situated in the State. They cannot be heard of any grievance nor that declining the exemption to their children is discriminatory or violative of Article 14 of the Constitution of India. Mr. Sunil Mohan Goel, Advocate, though has tried to draw support from the judgment of this Court in Vikram Singh Negi?s case cited supra, however, unsuccessfully because observations in the judgment came to be made while examining the legality and validity of the exemption provided to the exempted category 3(ii). Mr. Sunil Mohan Goel, Advocate, though has tried to draw support from the judgment of this Court in Vikram Singh Negi?s case cited supra, however, unsuccessfully because observations in the judgment came to be made while examining the legality and validity of the exemption provided to the exempted category 3(ii). True it is that the Court at that time had no occasion to compare the rights of the petitioners to seek exemption vis-à-vis the right of the exempted category 3(ii), however, for the reasons recorded hereinabove and also to be recorded hereinafter, we find no similarity in the category of the petitioners with exempted category 3(ii). We agree with further submission made by Mr. Sunil Mohan Goel, that the eligibility criteria i.e. requirement of passing two examinations out of four from the Schools situated in the State of Himachal Pradesh held legal and valid by this Court in Gagan Deep?s case (supra) should have been applied in letter and spirit. The eligibility criteria should have been applied as it is, however, the policy makers have exempted most probably subsequently some of the categories mentioned in clauses 2, 3 (i) to 3(iii) of main item IV (A). Such benefit was available to the category of the petitioners also in the recent past, however, as discussed hereinabove, the same now stands withdrawn from the current academic session 2018-19. We leave it open to the policy makers to re-consider the desirability of continuing such concession to these categories in future for the reason that when the persons falling under these categories claim themselves to be Himachalis having roots in the society can conveniently make their children to study in the schools situated in their respective areas or elsewhere in the State of Himachal Pradesh, if interested in seeking admission in the Medical/Dental Colleges situate in the State. Their children having not studied from the schools situated in the State amply demonstrate that they have been proclaiming themselves to be a Himachali merely to avail such concession. (Per: Dharam Chand Chaudhary, J.) 4. Per majority view also, the exemption from condition of passing two examinations from the recognized schools situated within the State of Himachal Pradesh by the candidates whose parents are residing outside the State in connection with their private occupation has been held to be rightly deleted from the Prospectus. (Per: Dharam Chand Chaudhary, J.) 4. Per majority view also, the exemption from condition of passing two examinations from the recognized schools situated within the State of Himachal Pradesh by the candidates whose parents are residing outside the State in connection with their private occupation has been held to be rightly deleted from the Prospectus. However, the disagreement is only to the limited extent of taking away such exemption from the children of those employees residing out of State of Himachal Pradesh in connection with their employment in private sector, treating them at par, those under Clause 3(ii) of the main item IV(A) in the Prospectus for the previous year. The disagreement qua deletion of Clause 3(iv) of the main item IV(A), therefore, otherwise was also partial. 5. Any how, the State of Himachal Pradesh had preferred the Special Leave to Appeal (C) No. 23025-23026/2018 in the Hon'ble Supreme Court of India against the majority view taken in Shivam Sharma's case supra. In view of the judgment of the Apex Court in Writ Petition (c) No. 766 of 2018 titled Rajdeep Ghosh Vs. State of Assam and others, the Apex Court though not inclined to interfere therewith, however, with the observations that the same be not treated as a precedent. Therefore, the petitioners, in these writ petitions, cannot press in service the majority view taken in Shivam Sharma's case cited supra. Not only this but the Apex Court in Rajdeep Ghosh's case cited supra has taken similar view of the matter as taken by one of us (Dharam Chand Chaudhary, J.) in Shivam Sharma's case, while holding that to lay down the essential educational requirements, residential/ domicile in a particular State as the eligibility criteria to seek admission in the MBBS/BDS/Ayurvedic course against the State Quota Seats is legally permissible. The ratio of the judgment in Rajdeep Ghosh's case reads as follows:- ?32. As held in the aforesaid decisions, it is permissible to lay down the essential educational requirements, residential/domicile in a particular State in respect of basic courses of MBBS/BDS/Ayurvedic. The object sought to be achieved is that the incumbent must serve the State concerned and for the emancipation of the educational standards of the people who are residing in a particular State, such reservation has been upheld by this Court for the inhabitants of the State and prescription of the condition of obtaining an education in a State. The object sought to be achieved is that the incumbent must serve the State concerned and for the emancipation of the educational standards of the people who are residing in a particular State, such reservation has been upheld by this Court for the inhabitants of the State and prescription of the condition of obtaining an education in a State. The only distinction has been made with respect to post graduate and post doctoral super specialty course. 33. Rule 3(1)(c) of the Rules of 2017 lays down the requirement of obtaining education in the State and relaxation has been given to the wards of the State Government employees or Central Government employees or to an employee of Corporation/Agency/instrumentality under the Government of Assam or the Central Government, whether on deputation or transfer on regular posting from obtaining education from class VII to XII for the period his/her father or mother is working outside the State. As urged on behalf of the petitioners the employees of other State Government but residents of Assam, similar relaxation ought to have been made cannot be accepted. Thus, their exclusion cannot be said to be irrational and arbitrary. The wards of the employees in the service of other States like Government employees of Arunachal Pradesh, in our opinion, form a totally different class. When the wards are obtaining education outside and the parents are working in Arunachal Pradesh as Government employee or elsewhere,they are not likely to come back to the State of Assam. As such Government of Assam holds that they should provide preference to State residents/institutional preference cannot be said to unintelligible criteria suffering from vice of arbitrariness in any manner whatsoever, thus, Rule 3(1)(c) framed by the Government of Assam is based on an intelligible differentia and cannot be said to be discriminatory and in violation of Article 34. With respect to the private employees also, the submission was raised that wards of private employees working outside the State ought to have been placed at the similar footing as that of the wards of the State Government/Central Government employees etc. In our opinion, when once parents have moved outside in a private employment and wards obtaining education outside, they are not likely to come back, thus, their exclusion as aforestated footing cannot be said to be irrational or illegal. 35. In our opinion, when once parents have moved outside in a private employment and wards obtaining education outside, they are not likely to come back, thus, their exclusion as aforestated footing cannot be said to be irrational or illegal. 35. It was urged that some of the students may obtain admission in other States for the purpose of better coaching. Relevant data has not been placed on record by the petitioners that in Assam coaching is not available. Apart from that, when they can afford to obtain coaching in States, they stand on a different footing, they are the one who belongs to an affluent class who can afford expensive education in other States and it is not necessary that they should be adjusted in State quota seat, they can stake claim for All India Quota Seats for the State of Assam. They can stake their claim with respect to open seats within the State of Assam. The exclusion is not total for them. However, with respect to the State quota seats, since it is open to the State Government to lay down the educational as well as domicile requirement, incumbents must fulfill the criteria. The criteria so laid down in Rule 3(1)(c) of Rules of 2017, cannot be said to be ultra vires of Article 14 of the Constitution of India.? 6. The observations hereinabove made by Hon'ble the Apex Court, therefore, substantiate the view of the matter taken by one of us (Dharam Chand Chaudhary, J.) in the judgment rendered in Shivam Sharma's case, reproduced hereinabove. 7. Being so, the points raised in these writ petitions are squarely covered against the petitioners by the law laid down in Rajdeep Ghosh's case cited supra. We, therefore, find no merit in these writ petitions and the same are accordingly dismissed, so also the pending application(s) if any.