Madras High Court
The Chief Secretary vs D.Kuralarasan (M-19) on 19 August, 2021
W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.A.(MD).No.610 of 2019
and
W.P.(MD).Nos.14119 & 14128 of 2020
and
W.M.P.(MD.Nos.11772, 11776, 11780 of 2020
and C.M.P.(MD)Nos.3831, 3832 of 2020 & 5003 of 2019
W.A.(MD).No.610 of 2019
1.The Chief Secretary,
Tamil Nadu State,
Fort St. George,
Secretariat, Chennai 600 009.
2.The Principal Secretary,
Department of Health & Family Welfare,
Fort St. George,
Secretariat, Chennai 600 009.
3.The Additional Director of Medical Education,
Secretary,
Selection Committee,
162, Periyar EVR High Road,
Kilpauk, Chennai 600 010.
https://www.mhc.tn.gov.in/judis
... Appellants
1/18
W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
-vs-
1.D.Kuralarasan (M-19)
S/o.Datchana Moorthi,
VIII, Sokkapadappu,
PO.Sooranam,
Ilayangudi Taluk,
Sivagangai District 630 713.
2.The Joint Secretary,
Government of India,
Ministry of Defence,
Department of Ex-Servicemen Welfare,
Room No.237, B Wing, Sena Bhawan,
New Delhi – 110011. ... Respondents
Prayer :
Appeal against the order dated 08.05.2019 in W.P.(MD).No.17414 of 2018.
For Appellants : Mr.Sricharan Rangarajan,
Additional Advocate General
Assisted by Mr.M.Muthu Geethaiyan
Special Government Pleader
For Respondents : Mr.Shanmugasekaran, for R1
Ms.Victoria Gowri, ASGI for R2
W.P.(MD).No.14119 of 2019
A.Priyanka,
https://www.mhc.tn.gov.in/judis
W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
D/o.R.Annamalai,
11/4, Narayana Sami Kovil Street,
Alvartirunagari 628 ... Petitioner
-vs-
1.The Joint Secretary to the Government of India,
Ministry of Defence, Department of Ex Servicemen Welfare,
Room No.237, B Wing, Sena Bhawan,
New Delhi - 110 011.
2.The Principal Secretary,
Department of Health & Family Welfare,
Fort St. George,
Secretariat, Chennai 600 009.
3.The Additional Director of Medical Education,
Secretary, Selection Committee,
162, Periyar EVR High Road,
Kilpauk, Chennai 600 010. ... Respondents
Prayer :
Petition filed under Article 226 of Constitution of India for issuance of Writ
of Certiorarified Mandamus calling for the records of the 2nd Respondent in
impugned G.O.(2D).No.23 Health and Family Welfare (MCA1) Department dated
28.05.2004 and consequential G.O(D).No.977/Health and Family Welfare
(MCA1) department dated 01.06.2018 and quash the same and direct the
respondents No.2 & 3 to consider the Petitioner for Admission to MBBS/BDS
https://www.mhc.tn.gov.in/judis
W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
Degree Courses in Tamil Nadu Govt., Medical/Dental Colleges, I.R.T.Medical
College, Perunthurai, Erode for the academic year 2020-2021 on the basis of G.O.
(Ms).No.1142 Health and Family Welfare Department dated 30.06.1979 and
reiterated in Priority VII to IX in vide letter F.No.6(1)/2017/D(Res II) dated
30.11.2017 as revised on 21.05.2018 by the 1st Respondent in the category of
Children of Serving Defence Personnel.
For Petitioners : Mr.K.KKannan
For Respondents : Mr.Sricharan Rangarajan,
Additional Advocate General
Assisted by Mr.M.Muthu Geethaiyan
Special Government Pleader
W.P.(MD).No.14128 of 2020
Ms.K.Sukisha
D/o.V.Krishnasamy ... Petitioner
-vs-
1.The Joint Secretary to the Government of India,
Ministry of Defence, Department of Ex Servicemen Welfare,
Room No.237, B Wing, Sena Bhawan,
New Delhi - 110 011.
2.The Principal Secretary,
Department of Health & Family Welfare,
Fort St. George,
Secretariat, Chennai 600 009.
https://www.mhc.tn.gov.in/judis
W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
3.The Additional Director of Medical Education,
Secretary, Selection Committee,
162, Periyar EVR High Road,
Kilpauk, Chennai 600 010. ... Respondents
Prayer :
Petition filed under Article 226 of Constitution of India for issuance of Writ of
Certiorarified Mandamus calling for the records of the 2nd Respondent in
impugned G.O(2D).No.23 Health and Family Welfare (MCA1) Department dated
28.05.2004 and consequential G.O(D).No.977/Health and Family Welfare
(MCA1) department dated 01.06.2018 and quash the same and direct the
respondents No.2 & 3 to consider the Petitioner for Admission to MBBS/BDS
Degree Courses in Tamil Nadu Govt., Medical/Dental Colleges, I.R.T.Medical
College, Perunthurai, Erode for the academic year 2020-2021 on the basis of G.O.
(Ms).No.1142 Health and Family Welfare Department dated 30.06.1979 and
reiterated in Priority VII to IX in vide letter F.No.6(1)/2017/D(Res II) dated
30.11.2017 as revised on 21.05.2018 by the 1st Respondent in the category of
Children of Serving Defence Personnel.
For Petitioners : Mr.K.KKannan
For Respondents : Mr.Sricharan Rangarajan,
Additional Advocate General
Assisted by Mr.M.Muthu Geethaiyan
https://www.mhc.tn.gov.in/judis
W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
Special Government Pleader
COMMONORDER
(Order of the Court was delivered by N.KIRUBAKARAN, J)
Scorching Sun and Freezing Cold do not deter our border forces from
safeguarding our nation. Our forces spend sleepless nights in the borders to make
us sleep safely and securely inside our homes. They are separated from their
families for months together and some time years together in the interest of the
nation. That apart, they are martyred by enemy countries or extremists on daily
basis. Sometimes they are killed in groups by our enemies. When such is the
selfless sacrifice being made by the serving defence personnel, it is shocking and
surprising to note that the Government of Tamil Nadu omitted the special
reservation for wards of serving defence personnel for admission to medical
courses. The omission of wards of serving personnel in the special reservation for
medical admission is the subject matter of this appeal.
2.The first respondent's father is a Junior Commissioned Officer in the
Indian Army. The first respondent cleared NEET in the year 2018 and applied for
MBBS seat in one of the Government colleges in Tamil Nadu. However, he was
denied admission as no such reservation was available for wards of serving
defence personnel as per G.O.(D).No.977, Health and Family Welfare (MCA-1)
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
Department, dated 01.06.2018. Hence, the first respondent challenged the
aforesaid G.O. to the extent it excluded the wards of serving defence personnel
and further directed the appellants to include the wards of serving defence
personnel under special reservation in the prospectus of MBBS admission for
ensuing years. The said representation, on contest, was allowed by the learned
Single Judge against which the present appeal has been filed.
3.Heard Mr.Sricharan Rangarajan, learned Additional Advocate General,
Ms.Victoria Gowri, learned Assistant Solicitor General of India and
Mr.K.K.Kannan, learned counsel for the petitioner in the Writ Petitions.
4.The case of the first respondent before the learned Single Judge was that
as per G.O.Ms.No.1142, Health and Family Welfare Department, dated
30.06.1979, seats were reserved for children of ex/deceased/serving defence
personnel. Subsequently, the wards of serving personnel has been deleted and only
reservation has been made available for the wards of ex-servicemen. The
notification issued by the Government of India, Ministry of Defence dated
21.05.2018 gives inter-se priority for reservation/preference to the wards of
Armed Forces Personnel by States / Union Territories for admission to Medical /
Professional / Non-Professional Courses and it gives waterfall reservation giving
preferences from Priority I to Priority IX. Though Central Government notification
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
speaks about wards of serving personnel as Priority VIII, the State of Tamil Nadu
while issuing G.O.(D).No.977, Health and Family Welfare (MCA-1) Department,
dated 01.06.2018 retained the priority list only upto Priority VI and deleted the
other three categories including the wards of serving personnel which has been
given as Priority VIII. The said deletion is arbitrary and is contrary to the
Government Order issued by the Government of India,
5.The State Government contested that even though the wards of serving
defence personnel were included in G.O.Ms.No.1142, Health and Family Welfare
Department, dated 30.06.1979, a new policy has been taken through G.O.(2D).No.
23, Health and Family Welfare (MCA-1) Department, dated 28.05.2004 and the
special reservation is confined only to Physically Handicapped, Eminent Sports
persons, Children of Freedom Fighters and Children of Ex-servicemen. Though 6
seats were originally reserved for ex/deceased/serving defence personnel through
G.O.Ms.No.1142, Health and Family Welfare Department, dated 30.06.1979, the
same has been reduced to 4 seats as per G.O.(2D).No.23, Health and Family
Welfare (MCA-1) Department, dated 28.05.2004 and the remaining seats have
been added to the General Pool. In the year 2015, the number of seats given to
Army Personnel has been enhanced to 10 as per impugned Government Order in
G.O.(D).No.977, Health and Family Welfare (MCA-1) Department, dated
01.06.2018. The deletion of the serving defence personnel is as per the five Judges
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
Bench of this Court made in the case of M.Arthi (Minor) v. State of Tamil Nadu
and two others in W.A.No.3221 of 2002, wherein the larger bench observed that
other than the reservation in Tamil Nadu Act 45 of 1994, what is permissible is
only for Physically Handicapped, Eminent Sportsmen, Children of freedom
fighters and Children of Ex-servicemen being horizontal reservation and not
vertical and the Government has to be bear this in mind in future. Moreover, it was
argued that reservations are matters of Government policy and the scope of
judicial review was very limited.
6.The learned Single Judge after hearing both the parties found that
G.O.Ms.No.1142, Health and Family Welfare Department, dated 30.06.1979 is
still holding the field and there is no reason given to depart from the reservation
already provided through the aforesaid Government Order. Moreover, there was
nothing on record to show that G.O.Ms.No.1142, Health and Family Welfare
Department, dated 30.06.1979 has been superseded. Further, the learned Single
Judge found that the revised list of priorities has been issued by the Government
of India vide notification issued by the Ministry of Defence dated 21.05.2018, in
which the wards of serving defence personnel has been retained as Priority VIII
and there is no occasion for the State Government to deviate from the same.
Hence, the learned Single Judge held that the omission of Priority VII to IX as
contemplated in the Central Government notification dated 21.05.2018 in the
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
impugned Government Order is irrational, arbitrary and thus, quashed the
Government Order to the extent it omitted the wards of serving defence personnel
and directed the State Government to include the wards of serving defence
personnel for MBBS / BDS in the ensuing years from the current academic year.
7.After hearing the arguments and after perusing the records, it is very clear
that vide G.O.Ms.No.1142, Health and Family Welfare Department, dated
30.06.1979, the Government of Tamil Nadu very fairly took care of the reservation
for children of ex/deceased/serving defence personnel by providing two seats for
each category in the medical admission from July 1977 session onwards.
8.Though the State Government would argue that because of the larger
bench judgment in the case of M.Arthi (Minor) v. State of Tamil Nadu and two
others in W.A.No.3221 of 2002, the Government is not in a position to extend the
reservation benefits to the children of serving defence personnel, a detailed
analysis of the said judgment would reveal that the question before the Court in
that case was with regard to the reservation made to the children born of inter-
caste marriage. In paragraph 26 of the aforesaid judgment, it was specifically
stated that the only issue which was dealt with was regard to the Horizontal
reservation made in respect of the children born out of inter-caste marriage and the
other categories of reservation were not opened. Therefore, the decision of the
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
State Government to delete the reservation given to the children of serving
defence personnel is not sustainable.
9. Reliance has been placed by the State Government on the observation
made in Paragraph 19 of the said judgment. However, the said observation is only
recommendatory in nature and not directory and no positive direction has been
given. The larger bench had categorically stated in paragraph 26 that the Court
was not making any pronouncement with regard to the validity of those categories
for which special reservation had been made. A comprehensive reading of larger
bench judgment would make it very clear that there is no positive direction to omit
the reservation given to the children of serving defence personnel.
10.Therefore, this Court upholds the order of the learned Single Judge by
which the relevant portion of the impugned Government Order is quashed denying
the benefits of special reservation to wards of serving defence personnel.
11.That apart, the original Government Order in G.O.Ms.No.1142, Health
and Family Welfare Department, dated 30.06.1979, took care of the wards of
ex/deceased/serving defence personnel and there is no reason to depart from the
said Government Order. As rightly found by the learned Single Judge, no reason
has been given as to why the wards of serving defence personnel have been
deleted from the Horizontal reservation.
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
12.When the Government of India, after detailed consideration, laid various
parameters and revised the list of priority and included the wards of serving
defence personnel in Priority VIII in the revised priority given by the Central
Government dated 21.05.2018, there is no occasion for the State Government to
delete Priority VII to IX and there is no justification for total omission of the
wards of serving defence personnel.
13.No doubt, it is the policy of the Government to give benefits by way of
special reservation. When reservation is given to wards of ex-service personnel,
there is no occasion to delete the wards of serving defence personnel. Thus,
omitting Priority VII to IX is clearly arbitrary, irrational as found by the learned
Single Judge, as it violates Article 14 of the Constitution. There is no doubt with
regard to the dictum laid down by the Hon'ble Apex Court in Union of India v.
M.Selvakumar reported in (2017) 3 SCC 504, in which it was held that Horizontal
reservation is a matter of governmental policy and that it is not in the domain of
the Courts to embark upon an inquiry as to whether a particular public policy is
wise and acceptable or whether a better policy can be evolved. However, the way
in which the wards of serving defence personnel who have been given equal
treatment by providing two seats by virtue of G.O.Ms.No.1142, Health and Family
Welfare Department, dated 30.06.1979 has been deleted without any cause or
reason in the impugned Government Order is absolutely capricious and not
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
supported by reasons violating Article 14 of the Constitution of India.
14.The Hon'ble Apex Court in the decision made in the case of Ugar Sugar
Works Ltd vs. Delhi Administration reported in (2001) 3 SCC 635 held that if the
policy decision can be faulted on the grounds of mala fide, unreasonableness,
arbitrariness or unfairness, it is always open to the Court to interfere in those
circumstances. Similar view has been taken in the decision made in the case of
State of Madhya Pradesh v. Mala Banerjee reported in (2015) 7 SCC 698.
15.The learned Single Judge also relied upon the Division Bench Judgment
of the Delhi High Court made in the case of Master Harshil Anand v. Union of
India reported in (2016) 160 DRJ 268 to hold that the University cannot reclassify
or alter the category of reservation which has been recommended by the Ministry
of Defence, having accepted to implement it. Therefore, the Government of Tamil
Nadu cannot restrict any category of persons who are eligible for reservation as
per the Communication dated 30.11.2017.
16.It is the policy of the Government to give special reservation as approved
by the Hon'ble Apex Court in the case of Union of India v. M.Selvakumar
reported in (2017) 3 SCC 504. The policy as spelled out in G.O.Ms.No.1142,
Health and Family Welfare Department, dated 30.06.1979 gives equal preference
to the children of ex/deceased/serving defence service personnel by providing two
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
seats for each category in the year 1979. The aforesaid policy is very reasonable
and fair giving equal opportunity to students belonging to all the three categories,
however the reservation for the children of serving personnel has been deleted
through G.O.(2D).No.23, Health and Family Welfare (MCA-1) Department, dated
28.05.2004 and the special reservation is confined only to Physically
Handicapped, Eminent Sports persons, Children of Freedom Fighters and Children
of Ex-servicemen. Further, vide G.O.(Ms).No.16, Health and Family Welfare
(MCA-1) Department, dated 22.01.2015, the Government enhanced the number of
MBBS seats earmarked for the children of ex-service personnel from 2 to 5 seats
from the year 2015-16 and again the same has been enhanced to 11 seats through
G.O.(D).No.977, Health and Family Welfare (MCA-1) Department, dated
01.06.2018 from the year 2018-19 which is impugned before this Court. When the
total number of seats were in 100's during the year 1979, 6 seats were given to the
children of ex-service personnel, whereas every year, new medical colleges are
being established in Tamil Nadu and at present, Tamil Nadu has about 26 medical
colleges having 3650 seats in Government medical colleges and 1147 Government
quota seats in private medical colleges, totalling 4797 medical seats, out of which
15% is reserved for Central Government quota and the balance is left to the State
quota. Therefore, 11 seats available for the children of defence personnel are
inadequate and the same is required to be increased as has been done by other
States namely, Karnataka, Telangana, Punjab, Kerala and Andhra Pradesh.
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
17.In Andhra Pradesh, 1% of total medical seats available is allotted to
Children of Armed Forces personnel. In Karnataka, 10% of seats under the
defence quota is earmarked for serving defence personnel. In Kerala, 2 MBBS and
1 BDS seats are earmarked for serving defence personnel. In Telangana, 1% of the
seats is earmarked for defence quota which would come around 49 MBBS seats.
18.Taking into consideration, the allocation of more number of seats by the
other States, this Court expects that atleast 1% of the total seats would be made
available to the wards of defence personnel in recognition of their services to the
nation, from the next academic year onwards in medical admission including BDS
admission. A perusal of the prospectus issued by the State of Punjab would reveal
that even the wards of serving defence personnel have been included in the special
reservation under the defence quota.
19.As stated above, the policy expressed by the State in G.O.Ms.No.1142,
Health and Family Welfare Department, dated 30.06.1979 is capable of doing
justice to all sections of defence personnel namely, ex/deceased/serving.
20.In view of the abovestated position, this Court agrees with the reasoning
given by the learned Single Judge. Therefore, this Court finds no illegality or
infirmity in the order passed by the learned Single Judge and hence, the Writ
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
Appeal stands disposed of with a direction to the Central Government to revisit
the priority list giving equal importance to all persons by distributing the available
seats uniformly, so that all sections would be benefitted. The said exercise has to
be carried out within a period of 12 weeks from the date of receipt of a copy of
this order.
21.As far as the case of the petitioners in W.P.Nos.14119 and 14128 of
2020 are concerned, the respondents are directed to consider the case of the
petitioners in the light of the observations made above in the WRIT APPEAL.
Thus, the Writ Petitions are disposed of in the above terms.
Connected miscellaneous petitions are closed. No costs.
(N.K.K.,J) (B.P.,J)
19.08.2021
pgp
To
1.The Joint Secretary to the Government of India,
Ministry of Defence, Department of Ex Servicemen Welfare,
Room No.237, B Wing, Sena Bhawan,
New Delhi - 110 011.
2.The Principal Secretary,
Department of Health & Family Welfare,
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W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
Fort St. George,
Secretariat, Chennai 600 009.
3.The Additional Director of Medical Education,
Secretary, Selection Committee,
162, Periyar EVR High Road,
Kilpauk, Chennai 600 010.
https://www.mhc.tn.gov.in/judis
W.A.(MD).No.610 of 2019 & W.P.(MD).Nos.14119 & 14128 of 2020
N.KIRUBAKARAN, J
and
B.PUGALENDHI, J
pgp
W.A.(MD).No.610 of 2019
and
W.P.(MD).Nos.14119 & 14128 of 2020
Dated : 19.08.2021
https://www.mhc.tn.gov.in/judis
