Punjab-Haryana High Court
Ahsaas vs State Of Punjab And Others on 4 September, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:115158-DB
CWP-19148-2024 (O&M) -1-
CWP-24199-2023 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. CWP-19148-2024 (O&M)
Reserved on: 30.08.2024
Date of decision: 04.09.2024
AHSAAS
..Petitioner
Versus
STATE OF PUNJAB AND ORS.
..Respondents
2. CWP-24199-2023 (O&M)
AHSAAS
..Petitioner
Versus
STATE OF PUNJAB AND ORS.
..Respondents
CORAM: HON'BLE MR. JUSTICE SHEEL NAGU, CHIEF JUSTICE
HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Neeraj Gupta, Advocate for the petitioner.
Mr. J.S. Gill, Additional Advocate General, Punjab.
Mr. Anurag Chopra, Additional Advocate General, Punjab.
Mr. Nitin Kaushal, Advocate for respondent No.4-University.
Mr. Himanshu Malik, Senior Panel Counsel (UOI).
Mr. Deepak Balyan, Additional Advocate General, Haryana.
Mr. Vikas Mohan Gupta, Advocate
for respondent No.7 (in CWP-24199-2023).
ANIL KSHETARPAL, J.
1. Brief facts of the case:-
1.1 The petitioner herein aspires for admission in MBBS course
under category of Scheduled Caste in State of Punjab. In the year 2023, he
filed a CWP-24199-2023, seeking admission to academic session 2023-
2024. With respect to the academic session beginning from 2024-2025, he
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has filed CWP-19148-2024. This order shall dispose of both the writ
petitions as an identical issue is involved.
1.2 The petitioner was born at Ambala Cantt. (State of Haryana) in
the year 2005. He claims that his grand-parents migrated from the area
falling in State of Punjab in the year 1990 on account of massacre of 38
Hindu bus passengers at the hands of extremists. His mother and father have
been issued Scheduled Caste certificates by State of Punjab in the year 1983
and 1997, respectively. He places reliance upon instructions issued by State
of Punjab on 07.06.2016, and Central Government's instructions issued on
22.02.2018, in support of his claim.
1.3 Per contra, the respondents including State of Punjab, and the
University contest the same.
2. Arguments put forth by the learned counsel for the parties:
2.1 While relying upon the aforesaid instructions the petitioner's
counsel submits that the petitioner's family belongs to 'Ramdasiya'
community, who are permanent residents of the area of Lalru, which falls in
State of Punjab. As per the presidential notification for State of Punjab vide
Constitution (Scheduled Caste) Order, 1950, the 'Ramdasiya' community
was declared as Scheduled Caste. He submits that the petitioner is entitled to
reservation in the 'State of his origin' and not in any other State in view of
the judgments passed by the Supreme Court in Marri Chandra Shekhar
Rao Vs. Dean, Seth G.S. Medical College, 1990 (3) SCC 130, Action
Committee on issue of Caste Certificates Vs. Union of India, 1994 (5) SCC
244 and a Full Bench judgment of Bombay High Court in Shweta Santalal
Vs. State of Maharashtra and others, 2010 (2) BCR 497. He submits that
the petitioner's fundamental right to seek admission under the Scheduled
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Caste category in the State of his origin has wrongly been denied.
2.2 Per contra, learned counsels representing the University, State
of Punjab and private respondent in CWP-24199-2023, submit that the
petitioner is not qualified for admission in Scheduled Caste category as he
was born and brought up in State of Haryana and studied in Chandigarh. As
such the petitioner never resided in the area falling in State of Punjab even
for a day.
3. Analysis and Discussion:
3.1 It may be noted here that year after year admission to MBBS
course has been made the subject matter of litigation before the Courts.
Ultimately, in Dinesh Kumar (Doctor) Vs. Motilal Nehru Medical College,
1986 (3) SCC 727, the Supreme Court approved that the admissions to
medical colleges run by the State Government or funded by the State
Governments shall have to fill 15% seats under all India quota, whereas, the
States shall be entitled to fill remaining 85% seats in State quota based upon
the NEET result.
3.2 Preference in admission on the basis of residence, as well as
institutional preference is permissible so long as there is no total reservation
on the basis of residence or institutional preference as held by the Supreme
Court in D.P. Joshi Vs. State of Madhya Bharat, AIR 1955 (SC) 334.
Similarly, in Jagdish Saran (Doctor) Vs. Union of India, 1980 (2) SCC
768, the same view was reiterated. With respect to State of Haryana, similar
view was taken in Anant Madaan Vs. State of Haryana, 1995 (2) SCC 135,
whereas, with respect to State of Himachal Pradesh, similar view was taken
in Nishan Puri Vs. State of Himachal Pradesh, 1999 (1) SCC 126.
3.3 With respect to academic session 2023-2024 and 2024-2025,
the requirement of admission under State quota has not been changed.
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Hence, the relevant extract of the prospectus issued for academic Session
2024-2025, reads as under:-
"9. Out of the total seats in Government Institutes, 15%
seats (All India Quota) in MBBS/BDS courses shall be
filled by the Government of India through centralized
Counselling by Medical Counselling Committee of
DGHS, MOHFW, Govt. of India on the basis of marks
obtained in NEET. Rest 85% seats shall be filled as per
merit of NEET by the Admission Committee constituted
by the Government of Punjab.
10. The details of the institutions and category wise seats
shall be available on the official website of Baba Farid
University of Health Sciences, Faridkot i.e.
www.bfuhs.ac.in.
11. The eligibility of the candidate for state quota is as
under:
a) The candidate should be Citizen of India.
b) The candidate must have passed 10+1 & 10+2
from the state of Punjab or
c) The candidate should have born in the State of
Punjab or
d) The candidate must be a "Permanent
Resident" in the state of Punjab.
Note:- "Permanent resident" in the State of Punjab
means:-
i) Candidates who have studied for a period of 5 years in
Punjab or have studied in Punjab for 2 years just
preceding the qualifying examination for the admission
or
ii) Children wards of
a) The employees of Punjab Govt. posted in or
outside Punjab State or working on deputation
having atleast 3 years of service. Or
b) The employee of Govt. of India posted in
Chandigarh or in Punjab in connection with the
affairs of the Punjab Govt. for a period of 3 years.
Or
c) The employees of State Govt.
institutions/undertakings who are posted in
Chandigarh or in Punjab in connection with the
affairs of the Punjab Govt, for a period of 3 years.
Or
d) The employees having atleast 3 years of service
in autonomous bodies/companies in which Punjab
Govt. has 20% or more shares. Or
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e) The Residents who are residing outside Punjab
on Account of their service either with the GOI or
with the employees of the Govt. of Punjab in the
matter of issue of 'Residence Certificate' provided
the permanent address of such employees fall in
the reorganized Punjab i.e. on or after 01.11.66,
as per their service books. Or
f) The employees borne on the establishment of
Punjab and the Haryana High Court discharging
duties in connection with the affairs of the State of
Punjab having atleast three years of service who
have not availed this facility from their parent
State and State of Haryana and U.T; Chandigarh.
Or
iii) Children/wards of the pensioners of Punjab
Government irrespective of the fact that the original
home of the retiree is in a state other than Punjab or he
has settled after retirement in or outside Punjab. Or
iv) Children/wards of persons who have settled in Punjab
or had resided in Punjab for a period of atleast 5 years
at any time prior to the date of submission of the
application either in pursuit of a profession or holding of
a job.
In addition the following categories of candidates are
also eligible for admission in MBBS and EDS courses in
medical and dental institutes in Punjab:-
a) Wards of defence personnel posted in Punjab.
b) Candidates seeking admissions under NRI
category.
c) Candidates belonging to minority community
who are competing for the minority quota in the
minority institutions.
d) Children/wards/dependents (whose parents are
not alive) of all those regular Central Government
employees, employees of Boards/Corporations/
Statutory Bodies of the Central Government who
have remained posted inside Punjab for at least
two years out of the three years preceding year of
passing 10+2 examination but were posted outside
Punjab for some time during these three years due
to which their children/wards/dependents have
passed class XI and/or XII or equivalent qualifying
examinations from outside Punjab. However those
who remained posted in Punjab continuously for
these three years shall not be entitled to be
exempted as they are equally placed with other
Punjab Government employees posted in Punjab.
Provided however, that in case adequate number of
candidates is not available for BDS course, then
candidates who are not eligible for state quota may be
considered."
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3.4 In Clause 15 of the prospectus, the sub-classification (i.e.
reservation) in the 'State quota' seats has been given, which is extracted
hereunder:-
"15. Reservation in Government Medical/Dental
Colleges:
The reservation for the State quota seats in Government
Institutes in various categories for admission to the
Undergraduate courses in Government Medical/Dental
Institutes shall be as under:
(i) Scheduled Castes 25%
(ii) Backward Classes 10%
(iii) Backward Area/Border Area (1% each) 2%
(iv) Persons with disability 5%
(v) Sports Persons 1%
3.5 The eligibility of candidates for taking admission in State quota
lays down that the candidate shall fulfil two out of four requirements.
Condition (a) is mandatory and from the remaining three requirements, the
candidate has to fulfil either (b), (c) (d) to be eligible to get admission in the
State quota. Condition (b) provides that the candidate must have passed
10+1 & 10+2 (qualifying exam) from educational institution located in State
of Punjab. Condition (c) lays down that candidate should have been born in
State of Punjab. Condition (d) states that a candidate must be a 'Permanent
Resident' of State of Punjab. The expression 'Permanent Resident' has been
defined in the note appended to clause 11. As per the petitioner, migrated
persons and their progenies migrated to various other states should be
exempted from fulfilling Clause 11. It is significant to note that the
petitioner neither fulfils condition (b) nor (c) and nor (d). He fails to fulfil
any of the conditions laid down for claiming admission in State quota.
3.6 It is evident that as per Clause 11, the petitioner does not fall in
the category of eligible candidates for admission in the State quota. In the
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subsequently filed writ petition also, he has not challenged the correctness of
Clause 11. In the considered opinion of this Court, the petitioner's
entitlement to the reservation in Scheduled Caste category can be considered
only if he fulfils the requirements for admission to MBBS seats in the State
quota as laid down in Clause 11. The States are entitled to give preference to
its own residents. Similarly, institutional preference is also permissible so
long as there is no total reservation. Thus, he is not entitled to stake claim in
the seats exclusively reserved for the candidates who are residents of Punjab
and therefore, entitled to seek admission in State quota. The reservation laid
down under Clause 15 is only for the candidates eligible for taking
admission under State quota seats.
3.7 The petitioner's case is also not covered by the instructions
dated 07.06.2016, issued by State of Punjab. Clarification was issued about
giving facilities/benefits to the persons migrated to Punjab from other States.
Learned counsel for the petitioner relies upon para 4, which reads as under:-
"4. Thus, those persons who were permanent residents of
the State of Punjab on the date of notification of their
caste, their children, their children's children, etc. are
Scheduled Castes of the State of Punjab, and the state of
origin of the said persons for taking benefit of scheduled
caste is Punjab. The persons belonging to Scheduled
Castes/Scheduled Tribes of any State/Union Territory of
India other than the State of Punjab, who have come to
the State of Punjab from their State of Origin, are
considered to have migrated for availing the benefit of
Scheduled Castes person to be considered. The format
regarding issuance of Scheduled Caste, Scheduled Tribe
certificate to these migrated persons, is enclosed as
Annexure-A."
3.8 The aforesaid instructions are applicable only to those persons,
who are permanent residents of State of Punjab. The expression 'Permanent
Residents' has already been explained in the prospectus. These instructions
do not lay down that the grand-children of migrants from State of Punjab,
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who are neither born nor studied nor resided in Punjab shall be entitled to
admission in the State quota.
3.9 Further reliance on instructions issued by Government of India
on 22.02.2018 is also misplaced. These instructions are only reiteration of
the procedure for the issuance of Scheduled Caste certificates to the
migrants from other States/Union Territories. The SC/ST certificates can be
issued by the States where the migrant's family is residing on the basis of a
previous certificate issued by his or her State of origin.
3.10 Marri Chandra Rao's case (supra), relates to admission of
candidates, who have migrated to another State. It was held that the
candidate recognized as a member of Scheduled Caste/Scheduled Tribe in
his original State on migration to another State is not entitled to benefit of
reservation of seats in the migrated State. Similarly, in Action Committee
on issue of Caste Certificate's case (supra), a Five Judges Bench of the
Supreme Court held that a person belonging to Scheduled Caste/Scheduled
Tribe in relation to his original State of which he is a permanent resident or
ordinary resident, cannot be deemed to be so in relation to any other State on
his migration for the purpose of employment/education etc. The following
observations were made by the Supreme Court while examining the concept
of involuntary migration:-
"10. It has, however, to be borne in mind that a man
does not cease to belong to his caste by migration to a
better or more socially free and liberal atmosphere. But
if sufficiently long time is spent in socially advanced area
then the inhibitions and handicaps suffered by belonging
to a socially disadvantageous community do not continue
and the natural talent of a man or a woman or a boy or
girl gets full scope to flourish. These, however, are
problems of social adjustment i.e. how far protection has
to be given to a certain segment of socially
disadvantaged community and for how long to become
equal with others is a matter of delicate social
adjustment. These must be so balanced in the mosaic of
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the country's integrity that no section or community
should cause detriment or discontentment to other
community or part of community or section. Scheduled
Castes and Scheduled Tribes belonging to a particular
area of the country must be given protection so long as
and to the extent they are entitled in order to become
equal with others. But equally those who go to other
areas should also ensure that they make way for the
disadvantaged and disabled of that part of the
community who suffer from inabilities in those areas. In
other words, Scheduled Castes and Scheduled Tribes say
of Andhra Pradesh do require necessary protection as
balanced between other communities. But equally the
Scheduled Castes and Scheduled Tribes say of
Maharashtra in the instant case, do require protection in
the State of Maharashtra, which will have to be in
balance to other communities. This must be the basic
approach to the problem. If one bears this basic
approach in mind, then the determination of the
controversy in the instant case does not become difficult.
For the purpose of understanding the problem, it may be
worthwhile to refer to the Report of the Joint Committee
of the Parliament on the Scheduled Castes and
Scheduled Tribes (Amendment) Order Bill, 1967. It may
also be worthwhile to refer to the proceedings of the
Constituent Assembly on the 17th September, 1949
dealing with Articles 303 and 304, which later on
became Articles 341 and 342 respectively. Dr. B.R.
Ambedkar moving the Resolution observed as follows:
"That after Article 300, the following articles be
inserted:
300A.(1) The President may, after consultation
with the Governor or Ruler of a State, by public
notification specify the castes, races or tribes or parts of
or groups within castes races or tribes, which shall for
purposes of this Constitution be deemed to be Scheduled
Castes in relation to the State.
(2) Parliament may by law include in or exclude
from the list of Scheduled Castes specified in a
notification issued by the President under clause (1) of
this article any caste, race or tribe or part of or group
within any caste, race or tribe, but save as aforesaid a
notification issued under the said clause shall not be
varied by any subsequent notification.
300B. (1) The President may after consultation
with the Governor or Ruler of a State, by public
notification specify the tribes or tribal communities or
parts of or groups within tribes or tribal communities
which shall for purposes of this Constitution be deemed
to be scheduled tribes in relation to that State.
(2) Parliament may by law include in or exclude
from the list of scheduled tribes specified in a notification
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issued by the President under clause (1) of this article
any Tribe or Tribal community or part of or group within
any Tribe or Tribal community but save as aforesaid a
notification issued under the said clause shall not be
varied by any subsequent notification.
The object of these two articles, as I stated, was to
eliminate the necessity of burdening the Constitution with
long lists of Scheduled Castes and Scheduled Tribes. It is
now proposed that the President, in consultation with the
Governor or Ruler of a State should have the power to
issue a general notification in the Gazette specifying all
the Castes and tribes or groups thereof deemed to be
Scheduled Castes and Scheduled Tribes for the purposes
of the privileges which have been defined for them in the
Constitution. The only limitation that has been imposed
is this: that once a notification has been issued by the
President, which, undoubtedly, he will be issuing in
consultation with and on the advice of the Government of
each State, thereafter, if any elimination was to be made
from the List so notified or any addition was to be made,
that must be made by Parliament and not by the
President. The object is to eliminate any kind of political
factors having a play in the matter of the disturbance in
the Schedule so published by the President.
23. Having construed the provisions of Article 341 and
342 of the Constitution in the manner we have done, the
next question that falls for consideration, is, the question
of the fate of those scheduled caste and scheduled tribe
students who get the protection of being classed as
scheduled caste or scheduled tribes in 'the States of
origin when, because of transfer or movement of their
father or guardian's business or service, they move to
other States as a matter of voluntary transfer, will they
be entitled to some sort of protective treatment so that
they may continue or pursue their education. Having
considered the facts and circumstances of such situation,
it appears to us that where the migration from one State
to other is involuntary, by force of circumstances either
of employment or of profession, in such cases if students
or persons apply in the migrated State where without
affecting prejudicially the rights of the scheduled castes
or scheduled tribes in those States or areas, any facility
or protection for continuance of study or admission can
be given to one who has so migrated then some
consideration is desirable to be made on that ground. It
would, therefore, be necessary and perhaps desirable for
the legislatures or the Parliament to consider
appropriate legislations bearing this aspect in mind so
that proper effect is given to the rights given to scheduled
castes and scheduled tribes by virtue of the provisions
under Articles 341 and 342 of the Constitution, This is a
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matter which the State legislatures or the Parliament
may appropriately take into consideration."
3.11 The Supreme Court has already observed that it is for the
Parliament/Legislature/Executive to take a policy decision based on the
existing conditions and requirements of a State. The Court, in exercise of
power of judicial review, is primarily concerned with evaluating the legality
and constitutionality of decisions taken by the public authorities. This
approach allows the Courts to render a decision that is concise and focused
on the most important aspect of law, ensuring that the judgment addresses
the essential legal principles, without becoming bogged down in policy
matters.
3.12 Similarly, the Full Bench judgment of Bombay High Court in
Shweta Santalal's case (supra) examined the question, "whether a person
who was not the ordinary resident as on the date of the relevant presidential
notification in the area that now constitutes the State of Maharashtra will be
entitled to benefit of reservation in the State?" It was declared that if the area
in which the person was residing, has now become a part of State of
Maharashtra, then he will be entitled to reservation. It is evident that this
judgment is not related to migration of the person belonging to the
Scheduled Caste/Scheduled Tribe, hence, the same is not applicable to the
facts of the present case. In fact, the Full Bench was examining the situation
in the context of transfer of an area on reorganization of State.
3.13 There is yet another aspect of the matter. It has been brought to
the notice of the Court that the admission to the academic Session starting in
the year 2023 was completed as per the schedule, whereas, for the academic
Session 2024, the last date for submitting online application form is
15.08.2024. As per schedule, the admission process is to be completed by
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30.08.2024 and physical reporting of candidates in the respective
provisionally allotted colleges and deposit of six months' tuition fee is from
31.08.2024 to 05.09.2024, which is sacrosanct.
3.14 Article 15(4) of the Constitution of India is an enabling
provision, which authorizes the State for making any special provision, with
respect to admission of candidates belonging to Scheduled Caste. In other
words, the State is entitled to take a conscious decision while laying down
the criteria which entitles a particular person to claim reservation in
admission in educational institutions. Part XVI of the Constitution makes a
special provision relating to certain classes including Scheduled Caste and
Scheduled Tribe. Article 335 is restricted to claims of Scheduled Castes and
Scheduled Tribes to services and posts. It does not deal with admission to
the educational institutions. Article 341 provides for the presidential
notification specifying the castes, races or tribes as Scheduled Caste with
respect to a State, hence, the argument of learned counsel for the petitioner
that petitioner's fundamental right has been violates hold no firm ground.
3.15 Similarly, the petitioner's prayer to read down Clause 11 of the
prospectus lacks merit because the reading down of provision is a tool
available to the constitutional Courts to save it from being declared
unconstitutional or arbitrary. In this case, the petitioner has failed to
establish that Clause 11 violates the constitutional provision or is manifestly
arbitrary.
3.16 Similarly, this Court does not find it appropriate to issue any
direction to the respondent to amend Clause 11 because it is the prerogative
of the State to lay down the criteria for the migrated Scheduled Castes and
their progenies as the same falls in the arena of policy making, which should
left to the State Government.
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3.17 The last argument put forth by the petitioner's counsel is that
petitioner is neither entitled to reservation in State of Haryana nor in State of
Punjab. He submits that the petitioner belongs to a Scheduled Caste but he is
not entitled to reservation either of the States, i.e. where his grant-parents
permanently resided nor in the State they migrated. This aspect has been
considered by the Supreme Court in para 10 & 23 in Marri Chandra
Shekhar Rao's case (supra).
4. Conclusion:
4.1 For the foregoing discussion, finding no merit, both the writ
petitions are dismissed.
4.2 All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL) (SHEEL NAGU)
JUDGE CHIEF JUSTICE
September 04th, 2024
Ay
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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