Punjab-Haryana High Court
Devang Bansal And Anr vs Ut Chd And Ors on 5 November, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:143350-DB
C.W.P.No.3206 of 2022 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(1) C.W.P.No.3206 of 2022 (O&M)
Reserved on 21.10.2024
Date of Order:05.11.2024.
Devang Bansal and another
.Petitioners
Versus
Union Territory, Chandigarh and others
..Respondents
(2) C.W.P.No.5867 of 2022 (O&M)
Pradyumn Yadav and others
.Petitioners
Versus
Union Territory, Chandigarh and others
..Respondents
(3) C.W.P.No.17244 of 2022 (O&M)
Ms. Ananya Goswami
.Petitioner
Versus
Union Territory, Chandigarh Administration and others
..Respondents
(4) C.W.P.No.23292 of 2022 (O&M)
Ms. Ananya Goswami
.Petitioner
Versus
Union Territory, Chandigarh Administration and others
..Respondents
CORAM: HON'BLE MR. JUSTICE SHEEL NAGU, CHIEF JUSTICE
HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Salil Sagar, Senior Advocate with
Mr. Sunil Kumar, Advocate
Mr. Rohit Paul, Advocate,
for the petitioner(s) in CWP-3206-2022.
Ms. Sanchi Bindra, Advocate, for
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Mr. Amar Vivek Aggarwal, Advocate,
for the petitioner(s) in CWP-17244-2022 and CWP-23292-
2022.
Mr. Vivek Suri, Advocate,
for the petitioner(s) in CWP-5867-2022.
Mr. Sanjeev K. Sharma, Advocate for
Mr. Deepak Aggarwal, Advocate
for respondent No.21 in CWP-5867-2022 and
for respondent No.22 in CWP-3206-2022.
Mr.Akash Gahlawat, Advocate for
Mr. Sunil K. Nehra, Advocate
for the respondents No. 18, 20 and 21 in CWP-3206-2022.
Mr. Manish Verma, Advocate and
Mr. Suresh Kumar, Advocate
for respondents No.8, 14, 16 and 18 in CWP-5867-2022 and
for respondents No. 9, 15, 17 and 19 in CWP-3206-2022.
Mr. Sumit Sangwan, Advocate, for
respondents No. 7, 10, 11, 12 and 24 in CWP-5867-2022.
Mr. Ravi Sharma, Standing Counsel for respondent No.6.
Ms. Sumitra, Advocate for
Mr.Vikram Singh, Advocate
for respondent No. 22 in CWP-5867-2022 and
for respondent No.23 in CWP-3206-2022.
Mr. Arun Gosain, Senior Govt. Counsel for Union of India
for respondent nos.5, 25, 26, (in CWP-3206-2022 and
for respondent no.5, 27, 28 (in CWP-5867-2022).
Mr. Sanjeev Kumar Arya, Advocate,
for respondents No.13, 14 and 16 in CWP-3206-2022,
for respondents No.12, 13, 15, 24 to 26 in CWP-5867-2022
Mr. Himanshu Arora, Advocate,
for the respondent - UT Chandigarh.
ANIL KSHETARPAL, JUDGE
1. BRIEF FACTS OF THE CASE
1.1 Though this court is of the opinion that the issue is rendered
academic as the correctness of admission to MBBS Session 2021 is
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questioned, however, the learned counsel representing the petitioners
submits that damages can be awarded in view of judgment passed in
S.Krishna Sradha vs. State of Andhra Pradesh (2020) 17 SCC 465.
1.2 By this order, we will dispose of four Civil Writ Petition Nos.
3206, 5867, 17244 and 23292 of 2022, since they involve common issues
that are germane to the admission process qua MBBS seats in Government
Medical College and Hospital, Sector 32, Chandigarh, (hereinafter referred
to as 'GMCH, Chandigarh'), with respect to academic Session starting in
2021. In substance, the petitioners have challenged the correctness of note
appended to Clause A-3, in part A of the Centralized Admission Prospectus
issued for the purpose of admission to GMCH, Chandigarh, Dr. Harvansh
Singh Judge Institute of Dental Sciences & Hospital, Chandigarh and
Homoeopathic Medical College & Hospital, Chandigarh, which is extracted
as under:-
A-3): Eligibility Criteria and admission procedure for
115 UT Chandigarh Pool seats:(General Category, SC
Category, Person with Disability Category)
1. The candidates must fulfill relevant General Eligibility
Criteria (Page 7-8) 2. With reference notification No.
GMCH/TA-1(4/E)/2018/45819-27 dated 31.10.2018
issued by Principal Secretary Home-cum-Medical
Education & Research, Chandigarh Administration
reproduced as under:- In pursuance of judgment dated
31.08.2018 passed by the Hon'ble Panjab & Haryana
High Court at Chandigarh in CWP no. 18240, 17407,
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19851, 21558, 21742 of 2018 (O & M) titled as Ashu
Hooda Vs. Union Territory Chandigarh & Others, the
Administrator, Union Territory, Chandigarh is pleased to
frame the following eligibility criteria for admission to
State Quota Seats in MBBS course in Government
Medical College & Hospital, Sector-32, Chandigarh:-
i) Candidates who had completed 10th, 10+1 and
10+2 from schools/colleges recognized by the
Chandigarh Administration and situated in the
Union Territory of Chandigarh, as regular student
of the said school/college. However, this criteria
shall be implemented in a staggered manner i.e. in
2019, the eligibility criteria would be only 10+2, in
2020 it will be 10+1 & 10+2 and in 2021 it shall
be 10th, 10+1 & 10+2.
ii) Candidates whose parents are residents of
Chandigarh for the past 05 years immediately
preceding the date of application even if they do
not satisfy the criteria as laid down in condition
No. 1 above, The requisite residence certificate
issued from the office of Deputy Commissioner will
be taken as proof for this purpose. OR
iii) Candidates whose parents are employees of
Central Government/State Government who are on
deputation to U.T., Administration, including
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government employees of Chandigarh
Administration / employees working in autonomous
bodies/ companies in which Chandigarh
Administration has 20% or more share, for the
past 03 years immediately preceding the date of
application even if they do not satisfy the criteria
as laid down in condition No. 1 & 2 above.
However, candidates of all three categories above will
have to submit an undertaking/affidavit that the
candidate has not opted and claimed benefit of residence
in any other State/UT other than Chandigarh after the
declaration of NEET result.
Candidates need to submit the following
documents/ certificates to establish their eligibility for
UT Chandigarh Pool :-
(i) Class 10, 10+1 and 10+2 Certificate from
schools/colleges recognized by the Chandigarh
Administration and situated in the Union Territory
of Chandigarh, as regular student of the said
school/college as per Appendix B1. OR
(ii) Residence Certificate to be issued by the DC-
cum-Estate Officer/Sub Divisional Magistrate/
Tehsildar, U.T., Chandigarh in case of condition
No.2 of the eligibility criteria as per Appendix B2.
OR
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(iii) Certificate to be issued by the respective Head
of the Department in the case of condition No. 3 of
Eligibility Criteria for candidates whose parents
are working in Central Government/ State
Government and are on deputation to Chandigarh
Administration/ employees of Chandigarh
Administration / working in Autonomous bodies/
companies in which Chandigarh Administration
has 20% or more share for the past 03 years
immediately preceding the date of application as
per Appendix B3.
Note:- These conditions (i-iii) are waived off in
respect of wards of serving defense personnel/ex-
servicemen vide letter no. 19/1/3-IH(3)-
2007/18322 dated 14.09.2007.
AND Candidates of all three categories
above, including wards of serving defense
personnel/ ex-servicemen, will have to submit an
undertaking / affidavit that the candidate has not
opted and claimed benefit of residence in any other
State/UT other than Chandigarh after the
declaration of NEET result both at the time of
applying and again a fresh undertaking at the time
of appearing for counselling [as per Appendix B4]
NOTE:- i) The candidate who has applied for State
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Quota seats claiming residence in any other state(s) /
UT(s) other than UT Chandigarh, his/her candidature
will be rejected.
ii) The candidate who has applied for State Quota/
Management Quota seats in Pvt. College/ Deemed
Universities claiming residence in state(s)/ UT(s) other
than UT Chandigarh, his/her candidature will be
rejected.
iii) The candidate who have applied in GMCH as well as
other states and have withdrawn their candidature from
other states, their candidature will be cancelled and they
will be treated as 'opted and claimed' in other states
even if they withdraw the application after applying.
iv) If the clarification sought from the candidate by any
means viz email, phone, text message, written letter etc. is
not received within stipulated period, the candidature
will be cancelled."
1.3 Admission to MBBS UG course is held on the basis of a
common entrance test held by National Testing Agency. The total seats in
the Medical Colleges are divided between all India quota (15%), whereas
with respect to 85% seats, the State or the Union Territory is entitled to
make admissions. The States as well as Union Territories have been
providing for domicile based preference in admissions from time to time.
These writ petitions pertain to admission with respect to 85% quota seats
falling in UT Pool.
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2. ARGUMENTS PUT FORTH BY THE LEARNED COUNSEL
REPRESENTING THE PARTIES:-
2.1 The petitioners' senior counsel contends that the admission to
the entire 85% of seats in the UT Pool was opened to the wards of serving
defense personnel/ex-servicemen without requiring domicile, which is
arbitrary, illegal, unconstitutional and contrary to the principle of preference.
The learned counsel argues that this has resulted in injustice to UT
domiciled candidates, as they are now required to compete with wards of
serving defense personnel/ex-servicemen who have not met the domicile
eligibility requirement for securing admission through UT Pool.
2.2 Moreover, as per the affidavit dated 12.07.2022, the Director,
Medical College has categorically stated that there is no record or any
notification available that supports the decision regarding incorporation of
waiver clause in the prospectus and the petitioners are not guilty of delay as
the Civil Writ Petition No.2357 of 2022 was filed on 09.02.2022, the first
day of counselling. Ultimately, it has been contended that the Court's Act
prejudices no man and hence, the time consumed in court proceedings
cannot be deemed detrimental to the petitioners. It is contended that
subsequently UT Administration has withdrawn the aforesaid note on
15.07.2022, which proves that the same was arbitrary.
2.3 Per contra, UT's counsel has submitted that the policy decision
was taken at the highest level on 14.09.2007 (Annexure A-7, page 789)
which is not in violation of any statutory provision. He submits that
competence of authority is not challenged, therefore, the Court should desist
from interfering. He informed the court that from the academic session
beginning in 2023, the eligibility criteria has been amended and the amended
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conditions require the residence proof at the time of admission even for
wards of defense personnel/ex-servicemen at the time of entry into Army
service. Moreover, the writ petitions suffer from unexplained delay and
laches because the prospectus was issued on 28.12.2021, which stipulated
that the last date for application shall be 11.02.2022. The impugned note
stood incorporated in the prospectus continuously from academic Session
2011. The petitioners were aware of the same, however, they filed the first
writ petition on 09.02.2022, which was the date of the first counselling. In
such cases, the delay of one day is fatal. Additionally, the prospectus is
binding and the petitioners are estopped from challenging the conditions
subsequently after having submitted their applications.
3. ANALYSIS AND DISCUSSION:-
3.1 This court has considered the submissions of the learned
counsel representing the parties.
3.2 Article 15 of the Constitution of India prohibits discrimination
on the basis of religion, race, caste, sex or place of birth. As already noticed,
the Courts have approved the institutional preference and domicile/residence
based preferences consistently including D.P Joshi v. State of Madhya
Bharat , AIR 1955 SC 334, wherein it was held that the place of birth is not
synonymous to the expression 'domicile'. Once again this issue was
examined threadbare in Dr. Pardeep Jain etc. vs. Union of India and
others, (1984) 3 SCC 654. This judgment was again approved by Five
Judge Bench in Saurabh Chaudri and others vs. Union of India and
others, 2003 (11) SCC 146. The attention of the court has not been drawn to
any constitutional or statutory provision requiring domicile/residence based
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reservation/preference. The decision entirely rests upon the policy makers in
the facts and circumstances in a particular situation. The scope of judicial
interference in the policy decisions is extremely limited. The courts should
be reluctant to interfere unless it is established that the policy decision has
infringed the constitutional or statutory rights or it is wholly
arbitrary/illegal. With respect to the Central Government, the Executive has
the enabling power under Article 73 of the Constitution to take policy
decisions.
3.3 The Union Territory had, at the relevant time, permitted
admission to wards of serving defense personnel/ex-servicemen without any
requirement of domicile as mandated for other candidates permitting them to
compete for seats in UT Chandigarh, pool with the exclusive residents of
Chandigarh which encouraged competition. The UT residents cannot claim
that they are exclusively entitled to be admitted in UT Pool seats. On
account of their job requirements the defense personnel/ex-servicemen are
posted in various parts of the country. Such provision in the prospectus is
not per-se illegal.
3.4 It is evident from the policy decision dated 14.09.2007, issued
by Home Secretary, that a conscious decision was taken by the
Administration to waive off the domiciliary restrictions of minimum stay in
the States/UTs and condition of passing 10th and 12th standard examination
from the same State/UT in respect of Wards of serving defense
personnel/ex-servicemen seeking admission in institutions of Union
Territory, Chandigarh was taken in order to mitigate the problem of
admission in the colleges/institutions of higher level. The impugned note has
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been consistently incorporated in the various prospectuses issued for time to
time from academic session starting in the 2011. With respect to the
relevant academic Session, 2021, the prospectus became available on
28.12.2021, whereas the first writ petition was filed on 09.02.2022. The
delay of a single day is sufficient to deny the relief particularly when the
future of students/next generation seeking higher education is at stake.
3.5 Even, the learned counsel representing the petitioners admits
that admission at this stage would not be possible in the academic Sessions
of 2021, however, he prays for grant of substituted relief in accordance with
the judgment passed by the Hon'ble Supreme Court in S.Krishna Sradha's
case (supra). On careful reading of the judgment, it is evident that the
Supreme Court in the peculiar facts and circumstances of the case
particularly when it was found that no fault is attributable to the client who
has pursued his/her rights and legal remedies expeditiously and without
delay, the admission was granted in the next year by creating a
supernumerary seat. As regards the substituted relief, this court does not find
that the policy decision was arbitrary. It is significant to note that the courts
are not tasked with offering opinions; their primary role is to ensure that the
policies enacted are legal and do not violate constitutional or statutory
provisions. As such, while policies may have flaws, as long as they are
totally arbitrary or illegal, the court does not interfere. This ensures
effective governance while still being held accountable to legal standards.
The petitioners' counsel has also relied upon the judgment passed in Rajdeep
Ghosh vs. The State of Assam and others, (2018) 17 SCC 527, in which
the requirement of six years schooling from Class 7th to 12th in the State of
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Assam along with other requirements were the subject matter of challenge.
The Supreme Court dismissed the bunch writ petitions while upholding the
enabling right of the State to give preference to its own residents, while
declaring that the classification based on residence/domicile is permissible.
3.6 With reference to the affidavit of the Director of the Medical
College, it may be noticed that Union Territory, Chandigarh, has placed on
file the decision of the administration. Hence, the contents of the affidavit
cannot be relied upon particularly when the Ministry of Defense, India, had
written a letter to the Administrator of the Union Territory, Chandigarh, on
12.06.2007, in this regard which after having been considered, a conscious
decision was taken.
4. DECISION
4.1 In view of the foregoing discussion, this Bench finds no merit in
the writ petitions, which are hereby dismissed.
4.2 All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL) ( SHEEL NAGU )
JUDGE CHIEF JUSTICE
5th November, 2024
nt
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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