Madras High Court
V. Shanthanalakshmi vs State Of Tamil Nadu And Another on 8 February, 1995
Equivalent citations: AIR1995MAD219
Author: Shivaraj Patil
Bench: Shivaraj Patil
ORDER
1. The petitioner who belongs to backward community has filed this writ petition for a Writ of Madamus directing the respondents to publish the merit list of selected candidates for the seats reserved in the cateogry of 'deserted women' and allot one seat to the petitioner for the M.B.B.S. course for the academic year 1994-95, stating that on 3-12-1989 she was married to one C. P. Easwaramoorthy; because of the misbehaviour and cruelty of her husband she could not live with him; at the time of her marriage she had completed 10th standard only, and she could not continue her studies after marriage. It is submitted that the petitioner was forcibly driven out of the family from her husband within six months from the date of her marriage. Thereafter she is residing with her parents. After driving her husband used to live with one Baby and all efforts made by the parents and well-wishers of the petitioner for conciliation ended in futile. On the contrary her husband married the said Baby subsequently. The said Baby has even given birth to a female child through her husband on 25-10-1993. Under the circumstance the petitioner pursued her studies further to reconcile herself from the sorrowful family life. She joined the Plus 1 course at P.S.G., G.K.G. Higher Secondary School at Coimbators in the year 1992. In the given circumstances, particularly after a baby was born to the said Baby the second wife of her husband, all hopes of the petitioner of joining her husband became impossible. Hence having no other option but to separate from him, she filed H.M.O.P. No. 2 of 1994 on the file of the Subordinate Judge, Sankagiri for divorce on the ground of desertion. The said Court passed orders on 15-4-1994 granting a decree for divorce by dissolving the marriage dt 3-12-1989 of the petitioner with her husband.
2. The petitioner appeared for the public examination held in the year 1994 and obtained the following marks in the qualifying subjects:-
Physics .. 174 Chemistry .. 185 Botany .. 138 Zoology .. 179 She also appeared in the Entrance Examination held for M.B.B.S. course on 25-6-1994 and 26-6-1994, and scored 39.2 and 32.5 marks in Biology and Chemistry respectively. On the whole the petitioner scored 241.25 out of 300 marks. She applied for the medical course for the academic year 1994-95 under the category of seats reserved for 'deserted women'. In order to apply under the said category the petitioner had to produce a certificate to that effect issued by the Tahsil-dar of that area. She applied to the Tahsildar to issue a certificate well in time but un- fortunately in view of the visit of the Chief Minister to the place, the petitioner could not get necessary certificate from the concerned Tahsildar. However she enclosed copy of the divorce decree mentioned above. Thereafter the Tahsildar conducted enquiry in thevilage and subseqeuntly issued a certificate dt. 21-7-1994 certifying that the petitioner herein was deserted by her husband and is living separately. This certificate also was forwarded to the respondent and the receipt of the same is also acknowledged.
3. It is further submitted that the Prospectus to the medical course spells out the eligibility criteria for a deserted woman to get a seat reserved in that category. She has satisfied all the conditions. Only four seats were reserved in the said category. In the circumstaces the respondents ought to have published the list of selected candidates in the said category. In the year 1993 for the medical course no such list was published. Hence there was reasonable apprehension that the list of selected candidates along with the marks obtained by them would not be published by the respondents for the academic year 1994-95 also. If the list is not published the respondents will select candidates for the medical course for the academic year 1994-95 at their sweet will and fancy as was done for the academic year 1993-94 and thus the selection will be arbitrary and violative of Art. 14 of the Constitution.
4. Having participated in the entrance examination, the petitioner had legitimate expectation to know the result of the ex-amination and the criteria adopted for selection of candidates under the quota allotted for 'deserted women', and the respondents have a duty to meet the legitimate expectation of the candidates for medical course. Since in the year 1993 the selection list in that category was not published the petitioner apprehends that the respondents will not publish the merit list for the year 1994-95 also. Under the circumstances the petitioner having no other efficacious alternative remedy, has filed this writ petition seeking the writ of Mandamus as stated above.
5. A counter affidavit is filed by the second respondent resisting the claim/prayer of the petitioner, stating that the petitioner has submitted application for admission to M.B.B.S. course for the year 1994-95 under special category of 'deserted woman'; she belongs to B.C. category and has secured totally 241.10 marks academic-1 Entrance Exam. The merit list of the selected candidates for the seats reserved, under special category was published on 14-10-1994. The petitioner had enclosed a xerox copy of the decree of divorce dt. 15-4-1994 made in H.M.O.P. No. 2 of 1994. According to the respondents the petitioner submitted the application under special category against 'deserted woman' for admission to M.B.B.S. course 1994-95 incompletely without enclosing the Tahsildar's certificate as required under Clause 3.5 (vii) of the prospectus. Since the petitioner's application was incomplete it was not considered at all.
6. The merit list of the special category of the selection candidates was published on 24-10-1994 with their cut off marks. The case of the petitioner was not considered for want of Tahsildar's certificate along with the application. She had enclosed only copy of the decree which revealed that she herself sought divorce from her huband and as such she cannot be considered against the category of "deserted women" under the special category. Further copy of the Judgment also was not enclosed to know whether she was deserted and entitled to a seat in the said category. The grounds on which she sought divorce from her husband was not given. Since there were no other applications in the said special category meant for deserted women, and the only application of the petitioner was incomplete, it was not considered. The four seats earmarked in this category have already been distributed to candidates in the other category, the said seats are filled up, and at present there is no vacancy under this category "deserted women".
7. The respondents further contended that the petitioner was not eligible to be considered under the special category "deserted women" as she failed to submit valid documents in support of her claim to consider her for admission to M.B.B.S. under that category along with the application. She did not fulfil the conditions laid down in column Nos. 1 and 5 of the prospectus. It is clearly mentioned in the instruction No. 5 to candidates in the prospectus that "completed'' application form with enclosures may be delivered in person or sent in the cover provided by Registered Post to the Secretary, Selection Committee, Madras. The last date for receipt of complete application is 15-7-1974". Since the petitioner's application did not contain necessary enclosures and evidence her case was not considered under the special category for "deserted women" at all. Under these circumstances the respondents have prayed for dismissal of the writ petition.
8. Mr. N. R. Chandran, learned senior counsel appearning for the petitioner contended that,
(i) Merely because the petitioner obtained a decree of divorce, she did not cease to be a deserted woman, particularly so when the decree of divorce was obtained on the ground of desertion which fact is clear from the averments made in the petition filed by the petitioner seeking divorce and the order passed by the learned Subordiante Judge thereon. The position of the petitioner after divorce did not improve in any way so as to deny the benefit to her in the matter of admission to the M,B.B,S. course in the category reserved for 'deserted women'.
(ii) Although the petitioner applied in time to the concerned Tahsildar for issue of the required certificate that the petitioner is a deserted woman, it was not issued by the Tahsildar as he was busy in view of the visit of the Chief Minister to that place. Hence no fault can be found with the petitioner. At any rate when the decree of divorce was produced the respondents ought to have acted on it.
(iii) Having regard to the statement made in the counter affidavit that all the four seats reserved in the category of deserted women were filled up, he submitted that the relief can be moulded in the interest of justice on the facts and circumstances of the case, in that he submitted that the respondents may be directed to allot a seat to the petitioner to M.B.B.S. course for the academic year 1995-96.
9. On the other hand, Smt. Saraswathi Prasad, learned Additional Government Pleader, representing the respondents urged that when the petitioner submitted the application enclosing copy of the decree of divorce it was not clear from the decree alone as to what were the grounds for passing the decree of divorce; whether there was desertion on the part of the husband of the petitioner or it was the petitioner who deserted-the husband; it was the petitioner who filed the peitition for divorce and not her hsuband; after passing the decree of divorce the petitioner goes out of the category of 'deserted woman'.
(ii) The petitioner did not enclose the certificate of the Tahsildar as required under Clause 3.5(vii) of the Prospectus. Hence the application being incomplete and defective it was not eligible to be considered and accordingly it was not considered.
(iii) Since no other candidate applied seeking admission in this category and the only application of the petitioner was incomplete, the seats available in this category were allotted to others, and as such there is no seat available now to admit the petitioner for the academic year 1994-95.
10. In view of the rival contentions and the arguments advanced by the learned counsel for the parties the following questions arise for consideration, viz., i. Whether the petitioner ceased to be a deserted woman, in the context for the purpose of admission, merely because a decree far divorce was obtained in the competent Civil Court?
ii. Whether the application filed by the petitioner was not eligible to be considered in the absence of the certificate issued by the Tahsildar although a decree for divorce was produced along with the application? And iii. To what relief is the petitioner entitled to?
11. The facts which are not in dispute are:--
The petitioner applied seeking admission to M.B.B.S. course as against the seats reserved in the category of deserted women for the academic year 1994-95; number of seats available in this category was four; a decree for divorce was passed by the Civil Court on 15-4-1994 dissolving the marriage dt.3-12-1989 of the petitioner with her husband C. P. Easwaramoorthy; the petitioner appeared in the entrance examination held for M.B.B.S. course on 25-6-1994 and 26-6-1994; on the whole the petitioner scored 241.25 out of 300 marks; though she did not enclose a certificate issued by the Tahsildar showing that she was a deserted woman, she had enclosed the decree of divorce with the application; subsequently the Tahsildar after conducting enquiry also issued certificate dt. 21-7-1994 certifying that the petitioner was deserted by her husband and is living separately; the said certificate also was forwarded to the respondent; no other candidate sought admission in the category meant for deserted women although four seats were available; and the only application of the petitioner was not considered on the ground that she did not enclose the Tahsildar's certificate as required under Clause 3.5 (vii) of the Prospectus, on the ground that the application was incomplete.
12. The learned Additional Government Pleader submitted that the decree of divorce did not show as to on what ground it was passed, and the petitioner had not produced the copy of the petition filed for divorce and copy of the Judgment to show that the decree of divorce was obtained on the ground of desertion and that the husband of the petitioner had deserted her. From the copy of the petition filed under Section 13(1) of the Hindu Marriage Act, 1955 produced in this Court, it is clear that the petitioner filed the petition against her husband seeking a decree of divorce stating that the marriage between the petitioner and her husband took place on 3-12-1989; they lived as husband and wife for only four months; even during that period her husband ill-treated the petitioner; and not being satisfied with what was given at the time of marriage the husband of the petitioner demanded 10 sovereigns of gold and Rs. 10,000/- as dowry and ill-treated the petitioner to get the same from her father; he even threatened to marry a second wife if his demand was not complied with; in April, 1990 he drove out the petitioner from his house snatching all the jewels presented to her at the time of marriage; the efforts of the petitioner's father to compromise and and to take back the petitioner did not yield any result; in Oct., 1991 the petitioner's father along with other Panchayatdars went to the house of the husband for asking him to bring baek his wife from her parents' house; then they came to know that the petitioner has got marriaged one Baby as his second wife on 27-10-1991; the husband of the petitioner refused to take her back; and under the circumstances the petitioner was forced to take shelter in her parents' house; even the second wife of the petitioner's husband gave birth to a female child to the husband of the petitioner at Government Headquarters Hospital, Erode; the Birth Certificate also was produced along with the petition. At the end of paragraph 8 of the petition it is stated, "Therefore, this petitioner has come forward with this petition for divorce on the ground of desertion and second marriage."
13. On the basis of this petition, the learned Subordinate Judge, Sankary passed the order allowing the petition as prayed for in the presence of both the parties. Her husband also had made an endorsement on the petition before the Court that he has no objection to allow the petition which fact is clear from the copy of the order dt. 15-4-1994 passed by the learned Subordinate Judge. In view of the decree passed by the Civil Court on the petition filed for decree of divorce on the ground of desertion, it is established that the petitioner was deserted by her husband. Having regard to the facts leading to the decree of divorce as stated above, it cannot be said that the decree passed was either collusive or it was passed without there being a ground of desertion.
14. The learned Additional Govenment Pleader found fault with the section under which the petition for divorce was filed, stating that the petition was filed under Section 13(1)(i). I must at once state that mere wrong mentioning of section or subsection under which the petition was filed, does not prejudice the case of the petitioner because one has to go by the substance and not by the nomenclature.
15. The learned Additional Government Pleader also submitted that here is a case where it is the wife who filed the petition for divorce on the ground of desertion and not the husband, and hence the petitioner cannot come in the category of deserted woman. She further pointed out that in view of the decree passed for divorce the petitioner no more remained as a deserted woman because she becomes a divorced woman after passing of the decree. I find it difficult to accept the argument of the learned Additional Government Pleader in this regard. Whether the petition was filed by the husband or the wife for decree for divorce on the ground of desertion was not material. The fact remained that since the husband deserted the petitioner and drove her away from his house she started living with her parents for few years and when all efforts failed to bring about reconciliation in view of her husband having married one Baby as second wife and she gave birth to a child, the petitioner was thus deserted by her husband, and filed the petition. As already stated above, who filed the petition was not material. The fact of desertion was the consequence, relevant and material.
16. Further merely because a decree for divorce was passed on the ground of desertion, the position of a deserted woman does not improve or the desertion disappears. On the other hand the decree of divorce passed on the ground of desertion confirms it. It is not the case of the respondents that the petitioner, after divorce has either re-married or was placed in a better position. The learned Additional Government Pleader tried to resist the case of the petitioner contending that the desertion as required under the provisions of the Hindu Marriage Act is not proved. In view of the decree for divorce passed by the Civil Court on the ground of desertion, it is neither necessary nor proper to go into that question any further. In this view I have no hesitation to answer the point No. 1 in the negative.
17. The only deficiency or defect found by the respondents in regard to the application made by the petitioner seeking admission was that she did not enclose a certificate issued by the Tahsildar that she was a deserted woman. The petitioner explained under what circumstances she could not get the certificate from the Tahsildar in time although she had applied earlier. Instead and under the circumstances the petitioner had enclosed the copy of the decree of divorce about which sufficient discussion is already made above. Added to this even the required certificate that the petitioner was a deserted woman was also issued by the Tahsildar on 21-7-1994 subsequently, after holding enquiry. Even that certificate was sent to the respondent No. 2. Under the circumstances, the respondents, in my view, were not at all right and justified in not considering the application of the petitioner for admission when the peti-tioner had satisfied all other requirements.
18. The learned Additional Govenment Pleader has produced the original application form of the petitioner along with enclosures. On the application form itself it is endorsed thus :--
"Claims Spl. Cat. 15. Granted divorce by Subordinate Judge at her request. Not deserted by the husband. Claim 10 be verified."
The above endorsement shows that the claim was to be verified and not that the application was either rejected or not considered on the ground that the application was either incomplete or defective. Under the circumstances nothing prevented the respondents from considering the claim of the petitioner by seeking necessary clarification and even looking to the decree and certificate of the Tahsildar given later. One can reasonably see from yet another angle. A decree passed by the Civil Court for divorce on the ground of desertion is in any way unacceptable vis-a-vis the certificate of Tahsildar. At any rate when both the decree and the certificate were available before the respondents the application of the petitioner ought to have been considered. In the light of these facts of the case on hand, it cannot be said that the application of the petitioner was incomplete of defective. In my opinion there was substantial compliance even in regard to the proof that the petitioner was a deserted women. Thus t hold point No. 2 also in favour of the petitioner. I have taken the above view on this point having regard to the peculiar facts and circumstances of this case. It should not be understood that a defective or incomplete application made by a condidate should be considered and that the materials can be collected even after the last date for submission of the application was over.
19. It was submitted that as against four seats reserved in the category of deserted women, except the petitioner, none else applied seeking admission to M.B.B.S. course for the academic year 1994-95. The object and purpose of reservation of this special category is laudable and appear to support the deserted woman who after getting education in a professional college will not only serve the society, and also relieves herself from the misery and/dependency and leads a respectable life. This serves a good social cause. In my view this type of reservation made to encourage the unfortunate and suffering should not be handicapped on a very technical ground without substance. Denial of admission to the only candidate available i.e., the petitioner when on facts it is established that she is a deserted woman, on a very feeble and technical ground that the petitioner did not enclose Tahsildar's certificate to the application form, in my view, on facts and circumstances of this case, is not justified, and does not serve the purpose for which the reservation is made in the special category.
20. The learned Additional Government Pleader also submitted that all the four seats reserved in this category in the absence of applications were appropriated to candidates in other categories. As such there is no seat available for the academic year 1994-95. Having regard to the facts and circumstances of the case, in my view, the relief sought has to be moulded suitably. The petitioner being a deserted woman, has after her husband deserted her joined the Plus 1 course, com-
pleted the course, appeared in the entrance examination held for M.B.B.S. course, secured 241.25 out of 300 marks. In this situation one should appreciate the persuasion and urge of the petitioner to study rather than punish her, by denying admission to the medical course. If seats are not available for the academic year 1994-95, the respondents have to allot her one seat in the M.B.B.S. course during the academic year 1995-96 in any one of the colleges, if possible, having regard to the fact that the petitioner is a deserted woman, in a college convenient to her.
21. In the result, for the reasons stated above, I pass the following order:--
The writ petition is allowed. The respondents are directed to allot one seat for the M.B.B.S. course for the academic year 1995-96 to the petitioner, if possible in a college which is convenient to her. There shall be no order as to costs.
22. Petition allowed.