Punjab-Haryana High Court
Ishwar Singh vs Kurukshetra University And Others on 11 April, 2013
Bench: Ajay Kumar Mittal, G.S. Sandhawalia
LPA No. 98 of 2013 (O & M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
LPA No. 98 of 2013 (O & M)
Date of Decision:- April 11, 2013
Ishwar Singh ..............APPELLANT(S)
vs.
Kurukshetra University and others ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. Ashutosh Kaushik, Advocate,
for the appellant.
Mr. A.S. Virk, Advocate,
for respondents no. 1 to 3.
Mr. R.S. Malik, Advocate,
for respondent no. 4.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
G.S. SANDHAWALIA, J.
1. The present appeal is directed against the judgment dated 10.12.2012 passed in CWP No. 20359 of 2012 whereby, the writ petition had been dismissed. The short question which arises for consideration is whether the Ex- serviceman is entitled for admission in preference over the dependents of another Ex-serviceman and whether the priority is to be given firstly to the Ex-serviceman himself or whether he is to stand in line with the dependents of Ex-servicemen and compete with them on merit against the reserved seats.
2. The petitioner-appellant filed the writ petition seeking a writ in the nature of mandamus asking the respondent-university to implement the reservation policy for admission to the Bachelor of Education Degree course with respect to the quota for Ex-servicemen in letter and spirit and in accordance with the policy LPA No. 98 of 2013 (O & M) 2 of the Government of Haryana and as specified in the information brochure issued by the respondent-university. Further prayer was made that he should be granted admission to the Bachelor of Education Degree course in respondent no. 3- University College of Education, Kurukshetra under the Ex-servicemen quota for which he was fully eligible but had not been granted admission due to the faulty application of reservation of the same category.
3. The petitioner-appellant, who had been enrolled in Indian Air Force as an Airman on 27.09.1991, rendered 20 years of service and was discharged from service with pension as being an Ex-serviceman on 30.09.2011. It was pleaded that at the time of joining the service, he was Matriculate and while in service, he passed 10+2, acquired Bachelor of Arts (B.A.) and later on Masters of Arts (M.A.) degree. Since he wished to study further, he had applied for online registration and counseling for B.Ed. (Regular) course for the academic year 2012- 13 conducted by the respondent-university. The petitioner-appellant had opted for respondent no. 3-University College of Education, Kurukshetra as the first choice from amongst the various colleges offering the said course. However, the petitioner-appellant was not granted admission and on enquiry, he came to know that dependents of the defence personnel were given preference over the Ex- serviceman like him. Accordingly, it was pleaded that he made a representation dated 10.09.2012 to the Director General, Higher Education, Haryana, Panchkula in which he brought to his notice that the university had made a combined merit list of defence personnel/dependents of Ex-servicemen which was against the policy. The preference of reservation should have been given to the Ex- serviceman first and thereafter the dependents of Ex-servicemen should have been considered if any vacant seat was left after accommodating the Ex-servicemen. On 13.09.2012, the Director General forwarded his request to the Registrar of the University for consideration as per the reservation policy of Ex-servicemen category as mentioned in the prospectus approved by the Government as per LPA No. 98 of 2013 (O & M) 3 point (v). Another representation was made to the Registrar on the same issue on 20.09.2012 seeking preference being an Ex-serviceman first but admission was given to the dependents of the Ex-servicemen. However, the respondent- university had prepared a combined merit list which caused prejudice to the petitioner-appellant and he was not included in the list of successful candidates who had been granted admission to the B.Ed. regular course. Accordingly, the petitioner-appellant filed the writ petition placing reliance upon clause (v) of the prospectus which provided 3% horizontal reservation to Ex-servicemen/freedom fighters and their dependents by providing reservation within reservation of 1% of general category, 1% out of Scheduled Castes category and 1% from backward class category. Reliance was also placed upon the instructions regarding distribution and reservation of seats and general instructions issued by the Haryana State Counselling Society, Panchkula wherein, wards of Ex-servicemen who had died in action while in active service were to be given seats firstly and secondly to Ex-servicemen himself and thirdly to wards of Ex-servicemen and thereafter wards of Paramilitary Forces. Support was also drawn from the distribution of seats as per Clause 11 of Chapter 5 of the said instructions.
4. In the written statement filed by the respondent-University, the stand taken was that there was reservation given to Ex-servicemen to the extent of 3% horizontal reservation and their dependents. The admissions had been made in transparent method strictly on merits in accordance with the provisions made in the prospectus and that the candidates applying had to specify whether applying under defence personnel/dependent or freedom fighter category and there was no requirement to attach any certificate while applying online nor there was any requirement as to whether the candidate is Ex-serviceman or dependent of Ex- servicemen. The combined category wise merit list of defence personnel/freedom fighters and their dependents was prepared and admissions were made accordingly. The petitioner-appellant belonged to the Haryana General category and applied LPA No. 98 of 2013 (O & M) 4 under the Arts/Commerce stream. There were total 17 seats in Arts/Commerce under the defence/freedom fighters category and their dependents category out of which, 9 seats were for general category candidates. The merit of the last candidate admitted in general category was 63.556 whereas the merit of petitioner- appellant was 57.125. Accordingly, it was pleaded that the petitioner-appellant had remained unsuccessful in getting admission being lower in merit and could not now take a summersault to claim that the defence personnel (Ex-servicemen) should have been preferred over dependents of Ex-servicemen. There was no such condition in the prospectus and it was also pleaded that the petition was liable to be dismissed for non-joinder of the necessary parties as none of the admitted candidates had been impleaded in the petition. Thereafter, respondent no. 4 was impleaded by the petitioner-appellant.
5. The learned Single Judge, after taking into account the pleadings and the submissions, came to the conclusion that priority could not be granted to the Ex-servicemen followed by the dependents of Ex-servicemen and distinguished the judgment dated 18.04.2011 rendered by Himachal Pradesh High Court in CWP No. 6429 of 2010, Suman Kumar vs. State of H.P. and others on the ground that it was not dealing with the conditions contained in the prospectus. That instructions contained in Annexure P-9 were held not applicable on the ground that it appeared to be part of some prospectus and if the priority was to be allowed in the B.Ed. course, the same should have been mentioned in the prospectus issued in the case of the petitioner-appellant. It was further held that the petitioner-appellant had not challenged the conditions contained in the prospectus of which he was well aware and under the circumstances, could not claim admission in preference to the dependents of Ex-servicemen and thus, the writ petition was dismissed.
6. Counsel for the appellant has placed heavy reliance on the judgment of the Hon'ble Apex Court in Dilwan Singh and others vs. State of LPA No. 98 of 2013 (O & M) 5 Haryana and others, (1996) 8 SCC 369 to contend that preference has to be given first to the Ex-servicemen. He has further relied upon Annexure A-1, which is a reservation policy for the posts for the children of the Ex-servicemen in the service of the Haryana State dated 23.01.2008.
7. Counsel for the university, on the other hand, has defended the judgment of the learned Single Judge and submitted that the conditions in the prospectus were never challenged and there was no such condition that the Ex- servicemen had to be given priority. Reliance was also placed upon the distribution of seats under Clause 11 of Chapter 5 of the prospectus issued by the Haryana State Counselling Society, Panchkula wherein, the admissions were to be given in the categories specified to contend that if there was such condition, the petitioner-appellant could have claimed right firstly. It was further submitted that respondent no. 4 was not the lowest candidate and the petitioner-appellant had not impleaded the other candidates who were lower in merit whose admission would necessarily have to be set aside.
8. Counsel for respondent no. 4, on the other hand, contended that it was a one year course which had commenced in October and now, at this stage, it would be totally inequitable to displace the private respondent to attend their classes and she was not the lowest candidate and she had wrongly been impleaded.
9. After hearing the submissions of the counsel for the parties in our opinion, there is merit in the case set up by the appellant. The prospectus for the academic session 2012-13 whereby, the seats are reserved for the Ex-servicemen reads as under:-
"A) DISTRIBUTION OF SEATS The seats shall be distributed as under:
1) All India Category including Haryana: 15%
2) Bonafide Residents of Haryana: 85% (50% of the seats earmarked for bonafide LPA No. 98 of 2013 (O & M) 6 residents of Haryana will be reserved for the categories as mentioned at (B) below, as per State Govt. Policy and remaining 50% seats will be filled from among Haryana general Category).
B) Reservation of seats for Bonafide Residents of Haryana The seats shall be reserved for the categories as under:-
(i) to (iv) xx xx xx xx xx xx xx
v) 3% horizontal reservation will be given
to Ex-servicemen/ Freedom Fighters and their dependents by proving reservation within reservation of 1% of general category, 1% out of Scheduled Castes and 1% from backward classes category. As far as block allocation in Block A and Block B of Backward Classes category is concerned, year wise rotational system will be adopted. For example, if Block A of Backward classes are given seats in the Academic year 2012, the next Block i.e. B Block of category of Backward classes will be given seats in the next academic year i.e. 2012 and so on. The Head of the department concerned shall maintain the record for the purpose."
10. The instructions regarding distribution and reservation of seats issued by the respondent-University in the prospectus for admission to B.Ed. (Regular) course, 2013 further provides that the reservation of seats has to be as per the reservation policy of Haryana Government and subject to any change or amendment made by the Government. The said clause reads as under:-
"(C ) Guidelines for Reservation:
1. The Reservation of Seats is as per the Reservation Policy of the Haryana Govt. and is subject to any change/amendment made by the State Govt. from time to time."
11. The appellant has now attached the reservation policy for posts for the children of Ex-servicemen in services of the Haryana State dated 23.01.2008 LPA No. 98 of 2013 (O & M) 7 which has been issued by the Haryana Government. Clause 2 of the said policy mentions that Ex-servicemen who had not availed the benefit of re-employment in government service and their dependent sons and daughters would be considered for appointment against the posts reserved for Ex-servicemen to the extent of non- availability of suitable Ex-servicemen provided they fulfill all the required conditions viz-a-viz qualifications, age, experience etc. The combined reading of the above shows that the purpose of giving reservation for purposes of admission was to be as per the guidelines of reservation provided by the Haryana Government which the respondent-university was to follow. The effect of the said policy is that firstly the preference is to be given to the Ex-servicemen himself and in case of non-availability of suitable Ex-servicemen, the benefit would then flow to their dependent sons and daughters. The said Ex-servicemen constitute a separate class amongst themselves and cannot be put in a category or a class who get the benefit on account of the service their parents had rendered to the nation. Thus, the children or dependents of the Ex-servicemen could not steal a march over and above the Ex-serviceman himself, as has happened in the present case. The respondent had prepared a joint seniority list and had denied admission to the appellant by making him to compete with the dependents of the Ex-servicemen which is not be permissible and was against the purpose of the reservation defeating the purpose of the policy itself. The learned Single Judge had failed to consider this aspect and purpose of the policy. The reliance upon Dilwan Singh's case (supra) was rightly stressed by the counsel for the appellant. The Hon'ble Supreme Court in the said case came to the conclusion that the Ex-servicemen have to be considered at the first instance before the claims of the dependent children of the Ex-servicemen can be considered. The relevant portion of the judgment reads as under:-
"3. It is contended by Shri Mahabir Singh, learned counsel for the appellants that the selection Board LPA No. 98 of 2013 (O & M) 8 has adopted a policy of calling the ex-servicemen and the dependent children of the ex-servicemen together to consider their cases for recruitment according to merit which would stand an impediment to the ex-servicemen. We find force in the contention. The object of reservation of the ex- servicemen is to rehabilitate them after their discharge from the defence services. As per the instructions issued by the State Government, in the absence of availability of the ex- servicemen instead of keeping those posts unfilled, the dependent children, namely, son or daughter of ex- servicemen would also to be considered. The object thereby would be that the Selection Board should first consider the claims of the ex-servicemen and have their eligibility considered independently in the first instance before the claims of the dependent children of the ex-servicemen are considered. If they are found eligible and selected, for the balance unfilled posts, the selection should be done from among the dependent children of the ex-servicemen."
12. A Division Bench of this Court in CWP No. 13130 of 2001, Naresh Kumar vs. State of Haryana and others decided on 10.07.2002 also directed that the Selection Board would consider the claims of the Ex-servicemen independently in the first instance and then the dependents of the Ex-servicemen would be considered by placing reliance upon the observations of the judgment in Dilwan Singh's case (supra). The relevant observations in Naresh Kumar's case (supra) read as under:-
"A bare reading of the aforesaid paragraph would reveal that the Selection Board was required to consider the claims of the ex-servicemen independently in the LPA No. 98 of 2013 (O & M) 9 first instance and only if a suitable candidate was not available then the dependents of ex-servicemen were to be considered. In the matter before us today, it is clear that both sets of candidates, that is, ex-servicemen and the dependents of ex-servicemen had been evaluated at one and the same time. This was not permissible as per the judgment in Dilwan Singh's case.
We accordingly allow this petition, quash the selection of respondent No. 5 and direct that the ex- servicemen candidates would first be considered and only if suitable ex-servicemen candidates are not available then the dependents of ex-servicemen would be considered for appointment. We also direct that the necessary exercise would be completed within four months from the date that a certified copy of the order is supplied to the respondents."
13. A learned Single Judge of this Court in Dr. (Major) Harsh Vivek Singh vs. State of Punjab and another, 2010 (1) RSJ 78, allowed the writ petition whereby the Ex-serviceman was seeking admission to the Post Graduate Degree course against the reserved seats. The learned Single Judge held that in the preferential order of reservation whereby, the wards of the defence personnel who were getting benefit as against the defence personnel himself, was totally irrational and illogical. It was held that the dependents of defence personnel could not be entitled to benefit because of his/her parents being a lineal descendant and the ward could not march over the defence personnel himself. It was accordingly held that if defence personnel himself is competing as against a ward of any defence personnel, he/she has to be given preference over the said ward while placing reliance upon Dilwan Singh's case (supra). We are in agreement with the aforesaid reasoning of the learned Single Judge in Harsh Vivek Singh's case LPA No. 98 of 2013 (O & M) 10 (supra).
14. The observations of the learned Single Judge holding that the prospectus had not been challenged and thus, no relief could be granted to the appellant were legally unsustainable specially when the prospectus itself contained a condition that the policy of the Haryana Government had to be taken into consideration. The appellant had approached the Director General of Higher Education initially on 10.09.2012 and directions had been issued on 13.09.2012 to the Registrar of the University to consider the claim of the appellant as per point
(v) which provided that there was to be reservation for Ex-servicemen/freedom fighters and their dependents. The respondents failed to redress the grievance of the appellant at the appropriate time which led to the denial of admission for the said course. However, at this stage, since the course had started in October, 2012 and granting admission to the appellant would not be justified since he would not be able to complete his lectures for the annual examinations and further that respondent no. 4 has already completed the lectures of the said course, it would not be appropriate to disturb her admission as well. However, since the legal right of the appellant had been denied at the relevant point of time due to the wrong approach of the university and in order to balance the equities between the parties, it is directed that the petitioner be given admission to the B.Ed. course for the session 2013-14 against the Ex-servicemen quota for the said course with the respondent no. 3-college, where he had sought preference. The respondent- university in the future shall also give preference to the Ex-servicemen first as before giving admission to the wards, as held above. In similar circumstances, the Hon'ble Apex Court in Amandeep Jaswal vs. State of Punjab and others, 2006 (2) RSJ 326 directed that where relief had not been granted due to the session having already commenced, admission could be granted in the next Academic Year. The relevant observations read as under:-
"2. By the impugned judgment, the High Court LPA No. 98 of 2013 (O & M) 11 held that the writ petitioner Aman Deep Jaswal was meritorious and was entitled to be admitted in Government Medical College, Patiala, against the course of her option, namely, M.D. Anaesthesia. She could not, however, be granted relief in view of the session having already commenced. The relief was denied on the ground that if allowed, it would amount to mid-session admission which was not permissible. At the same time, the High Court cancelled the admission in the aforesaid course granted to respondent Dr. Radhika Dhawan. Further, concluding that the Selection Committee of the respondent-State had committed default in ignoring the rightful claim of the writ petitioner, the State was burdened with costs of Rs. 50,000/- [Rupees Fifty Thousand] by further directing that half of the amount would be recoverable from the Chairman/Members of the Selection Committee for ignoring the rightful claimant and for arbitrarily exercising the power vested in them and the remaining amount from the State. Both the writ petitioner and the respondent, Dr. Radhika Dhawan whose admission was cancelled, have challenged the impugned judgment of the High Court.
3. It is not in dispute that the appellant Aman Deep Jaswal was much higher in rank in the selection and had also opted for M.D. Anaesthesia as one of the options. There could be no valid reason for denying her admission simply because of the word 'any' written by her as third preference. Her first preference was M.D. Gynaecology and the next was M.D. Anaesthesia but in the second counselling LPA No. 98 of 2013 (O & M) 12 her first option was M.D. Anaesthesia. The same could not be denied for the use of the word 'any' when it is not disputed that she was more meritorious than Dr. Radhika Dhawan. The High Court was, however, right, despite these facts, in denying admission being granted to her during mid-session.
4. On these peculiar facts, we are of the view that the appellant Aman Deep Jaswal is entitled to be admitted in M.D. Anaesthesia in Government Medical College, Patiala in the next Academic Year 2006-2007 within the sanctioned intake of the college. Ordered accordingly."
15. Consequently, the writ petition is allowed and the judgment of the learned Single Judge is set aside and respondents no. 1 to 3 are directed to implement the above directions.
(G.S. Sandhawalia)
Judge
11.04.2013 (Ajay Kumar Mittal)
shivani Judge