Punjab-Haryana High Court
Akanksha Mehra vs Ut Of Chandigarh & Ors on 16 September, 2014
Author: K. Kannan
Bench: K. Kannan
CWP No. 12156 of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CWP No. 12155 of 2014
Date of decision : 16.9.2014
Ms. Akanksha Mehra ........Petitioner
Vs.
UT Chandigarh and others ....Respondents
CORAM: Hon'ble Mr. Justice K. Kannan
Present:- Mr. Rajiv Kataria, Advocate, for the petitioner(s)
Mr. Shekhar Verma, Advocate, for the respondents
---
K. Kannan, J.
The petitioner had filled in an online application for consideration for admission into MBBS Course, having qualified in AIPMT 2014. Her application was in response to a brochure that set down the eligibility criteria that contain an important note that read as follows :-
"The candidates should have passed 12th standard examination (qualifying examination) from schools/colleges recognized by the Chandigarh Administration and situated in the Union Territory of Chandigarh, as regular student of the said school/college.
Important Note : This condition is waived off in respect of wards of serving defence personnel/ex-servicemen vide letter No. 19/1/3-IH(3)-2007/18322 dated 14.9.2007."
The petitioner's claim that she was born and brought up in Chandigarh, having studied upto 10th Class and took her 12th class from a school at Mohali in Punjab State. She had given preference to residential and qualification as Punjab and Chandigarh in that order and in the results, ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CWP No. 12156 of 2014 -2- which was declared on 18.6.2014, she was not declared as eligible for admission. By applying the clause regarding eligibility set out, the petitioner brought a challenge to the admission criteria requiring a person who have passed 12th standard examination at Chandigarh from a school recognized by the Chandigarh Administration and situate in the UT Chandigarh. Since she had passed 12th class from Mohali, she was taken up as not duly fulfilling the eligibility criteria extracted above.
At the time when argument was brought on the issue raised by her in the writ petition, it was made known to the Court on 5.9.2014 that there were two vacancies in the Central Pool quota and one in All India quota and if the vacancies were not filled up, they were likely to be transferred to the State quota on 5.9.2014. She had been ranked 40 in the order of merit and I had, therefore, observed that in the likelihood of transfer from Central Pool quota or All India quota to State quota, a seat would be reserved for her for consideration. I had also observed that in such an event, there was no necessity to consider whether the policy laid down, restricting the admission only to a person who had studied 12th standard, was required to be considered.
The subsequent events have made it necessary to take the issue of the relevance of the policy criteria as well. Since there is a person lower in the order of merit to the petitioner but who has the requisite eligibility of having passed in 12th standard, who competes for the vacancy that arises by the transferred seat from the Central Pool, the matter is brought up for consideration whether the petitioner would obtain the benefit of consideration in the light of the validity or otherwise to the ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CWP No. 12156 of 2014 -3- policy.
Learned counsel for the petitioner would argue that the requirement of domicile or residence in a particular State or place, where the college is situate, has obtained favourable consideration from Court dispensations of seeing through such a policy, a larger State benefit by the prospect of the student completing the Course and remaining within the State who offers the services to the local people. Learned counsel could argue that in the year 1992-93 when the college was established, the policy was that the students should have studied the 10th class as well as 11th and 12th class from a school situated in Chandigarh. In 2003, a shift in the policy was to make possible a student who had studied two classes i.e. 11th and 12th class in Chandigarh as relevant for consideration for admission. In the year 2010 there been a further change in the policy of restricting the eligibility of a student who may have done upto 11th class elsewhere but must have studied the 12th class in a school at Chandigarh for admission. Learned counsel says that it advances no State interest and it makes possible even a person from some other State who had been born, brought up and resided elsewhere outside Chandigarh, to move into Chandigarh and seek for an admission after doing the 12th class alone at Chandigarh. This, according to the counsel, is grossly arbitrary.
Learned counsel for the respondents could argue that requirement of education qualification in Chandigarh has existed from the year 1992-93 and the requirement has been gradually scaled down from 10th to 12th class to merely 12th class for the benefit of a student, who studied in Chandigarh. A person, such as the petitioner, who deliberately ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CWP No. 12156 of 2014 -4- opted, although a resident at Chandigarh, to a school at Mohali, only because education in a school in Punjab for 12th Class, offered more number of seats to pick up from, thereby increasing her chances of selection from average several colleges. Having opted out of Chandigarh and done her schooling in a school at Mohali and having further applied for online counselling after seeing the brochure on 3.6.2014, the petitioner cannot complain after the rejection of her candidature on 18.6.2014. The writ petition had been filed only on 19.6.2014 and there is no justification for not coming with the challenge earlier, if the eligibility criteria was untenable or could not be acceptable. Learned counsel for the respondents could also refers to the decision rendered by this Court in "Shamli Jindal v. State of Punjab" in CWP No. 12017 of 2014, dated 5.8.2014, wherein this Court had upheld the eligibility criteria laid down by the State, requiring a student to have passed +2 classes from Punjab, apart from being a resident of Punjab. The counsel would argue that the same principle would apply if a student passes 12th class alone from a school within UT Chandigarh.
The decision in Shamly Jindal (supra) was examined from a constitutional perspective as to how any discrimination, on the basis of residence although impermissible, was made. Courts have gathered support to policies that advance State interest. I had referred two decisions of the Hon'ble Supreme Court in the case of "Abhinav Aggarwal v. UOI, (2001) 3 SCC 425" that allowed for similar consideration of passing +2 classes from Delhi for a candidate applying for MD Course. I was holding that a reservation criteria other than any merit for super specialty and post ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CWP No. 12156 of 2014 -5- graduate course must be at all times be minimal but in such a post graduate course a requirement of passing of +2 classes from Delhi, was seen to be appropriate, I held that passing of +2 classes requirement apart from residence in the State of Punjab, was equally relevant.
Here in this case, there is no requirement of residence. All that is necessary is that the person must have passed the 12th class from Chandigarh. In the example already cited, a person who has born and brought up elsewhere and moves over to Chandigarh only to the 12th class, would be eligible as a candidate fulfilling the criteria laid down in the brochure. I cannot understand what benefit could be served by requirement of merely a pass in the 12th class unattached by domiciliary considerations. Article 15 of the Constitution of India prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. In Dr. Preeti Shivalraba v. State of Madhya Pradesh, (1997) 7 SCC 120" the Supreme Court made distinction between place of birth and domicile or residence for a discriminatory practice and held place of birth as criteria will be constitutionally impermissible but the place of residence as criteria will be tolerated, if there is a reasonable ground.
In this case I must observe that there is not even a requirement of residence within the UT Chandigarh that is relevant. It is 12th class passed from Chandigarh that is relevant. It is wholly arbitrary and I cannot uphold the same. It is irrelevant that it has introduced in 2010 and it was not challenged by anyone. When a challenge comes up, there is bound to be an appropriate explanation justifying the criteria. I find none, I quash the requirement.
ASHWANI KUMAR2014.10.06 15:26 I attest to the accuracy and integrity of this document CWP No. 12156 of 2014 -6-
The matter would still be essential to note whether the person who had the knowledge of rejection of his application before purchasing the brochure on 3.6.2014 could have waited till 17.6.2014, applied for online counselling on the eligibility and bring a challenge post facto, the condition, after rejection of her candidature. This is again not charted territory in legal firmament that the person who have confronted by the rules of eligibility setforth, must challenge them before a person submits herself to consideration of eligibility. Under normal circumstances, a challenge brought beyond the last date for submission of application and after the results were announced, could not have been countenanced. In this case, I find some extraordinary situations that have compelled me to deviate from the result. On 2.9.2014, at the time when arguments were made, it was elicited that out of 100 seats, 97 seats have been filled up and 3 seats which were vacant, 2 were out of Central Pool quota and one remained under All India quota. Since an argument was made that there are still vacancies and she is higher in order of merit, I had observed that it was not necessary to examine the policy and if there was still a vacancy unfilled from the Central Pool quota, then the petitioner could be granted admission to such a vacant seat. On a subsequent date on 5.9.2014, it turned out that the seat from the Central Pool quota were not still filled up and it was getting transferred to the State quota. I had, therefore, passed an interim order allowing the petitioner to be considered for counselling and recall the order for fresh consideration as to whether she would be eligible and whether the policy announced was justified.
It was brought again today for consideration whether the ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CWP No. 12156 of 2014 -7- policy could stand the legal scrutiny. In the integrum there was an application filed by one Mudita Gulati contending that if the petitioners were to be granted admission, she would be affected and therefore, she must also be heard. That application bearing CM No. 11142 of 2014 was directed to be posted along with this petition. There is no representation from the applicant but it is informed by learned counsel for the petitioner to the Court that the said candidate has also been granted admission to one of the transferred seats. If one seat had been kept vacant and that comes fortuitously by a transfer from the Central Pool and the issue of policy still not considered, then any view taken that the policy cannot be upheld, shall go in favour of the candidate. It is the hovering vulture that catches the prey. The sleepy one lets its food slither under its claws. Under extraordinary circumstances the petition is allowed and the petitioner be granted admission to the Course.
This declaration of policy shall not be allowed to be opened up for candidates who have not been selected or who may have contested for such a seat but did not do so. There shall be curtain down for admission on this seat. The policy under challenge is struck down and will operate prospectively.
(K. Kannan) Judge 16.9.2014 Ashwani ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document