Punjab-Haryana High Court
Date Of Decision:27.09.2013 vs State Of Punjab And Others on 27 September, 2013
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CWP No.17750 of 2013 -1-
CWP No.18579 of 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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1. CWP No.17750 of 2013(&M)
Date of Decision:27.09.2013
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Nitesh Jindal and others
. . . .Petitioners
Versus
State of Punjab and others
. . . . Respondents
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2. CWP No.18579 of 2013 (O&M)
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Amanat Benipal
. . . .Petitioner
Versus
State of Punjab and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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In CWP No.17750 of 2013
Present: Mr. H.C. Arora, Advocate,
for the petitioners.
Mr.V. Ramswaroop, Addl. A.G. Punjab
Mr.Karan Sandhu, Advocate,
for respondent Nos.3 and 4.
Mr.Puneet Gupta, Advocate, Advocate,
for respondent No.6, 7 and 10.
Mr.A.R. Takkar, Advocate, with
Mr.Jivender Katoch, Advocate,
for respondent No.8.
Mr.Arvinder Arora, Advocate,
for respondent No.9.
Mr.R.K. Malik, Sr. Advocate, with
Mr.Ashok Dhanda, Advocate,
for respondent Nos.11, 15 and 18.
CWP No.17750 of 2013 -2-
CWP No.18579 of 2013
Mr.Ashwani Talwar, Advocate,
for respondent Nos.12 to 14, 16, 23 to 25.
Mr.Jagjit Singh, Advocate, for
Mr.Kunal Dawar, Advocate,
for respondent No.19.
Mrs. Anju Arora, Advocate,
for respondent No.20.
In CWP No.18579 of 2013
Present: Mr. G.S. Punia, Advocate,
for the petitioner.
Mr.V. Ramswaroop, Addl. A.G. Punjab
Mr.Manish Dadwal, Advocate,
for respondents No.3 and 4.
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RAKESH KUMAR JAIN, J.
Two writ petitions bearing CWP No.17750 of 2013 titled as "Nitesh Jindal and others Vs. State of Punjab and others" [for short 'the Ist petition'] and CWP No.18579 of 2013 titled as "Amanat Benipal Vs. State of Punjab and others" [for short 'the IInd petition'] are being decided together as the issues involved in both the writ petitions are identical. However, the facts are being extracted from CWP No.17750 of 2013 titled as "Nitesh Jindal and others Vs. State of Punjab and others".
The petitioners after qualifying NEET-UG-2013 opted for admission in Punjab State. Respondent No.3 issued prospectus for admission to the MBBS & BDS courses in which it is provided that candidates have to submit a CWP No.17750 of 2013 -3- CWP No.18579 of 2013 declaration in terms of Clause 18 of the Notification dated 5.6.2013 which is part of the Prospectus and is reproduced as under: -
"The Candidate and his parent /
guardian shall submit a sworn
declaration that the candidate has not passed the qualifying examination from more than one Board / University and had not appeared for counselling in any other State / UT except central counselling by Central Board of Secondary Education."
The case set up by the petitioners is that, the candidates, who appeared in NEET-UG-2013 were required to opt for three States of their preference. It is alleged that respondent Nos.6 to 10 got admission in the State of Haryana as well as in the State of Punjab and respondents No.11 to 25 had also appeared in counseling in some other State but could not get admission. Petitioners have reproduced chart in respect of respondents No.6 to 10 and 11 to 25 respectively, in the writ petition and has alleged that their admissions are contrary to Clause 18 of the Prospectus and as such the admissions given to the private respondents deserve to be cancelled.
CWP No.17750 of 2013 -4-CWP No.18579 of 2013
The petitioners have prayed for a direction to respondents No.1 to 5 to review the entire merit list for admission to MBBS/BDS Courses for General category after excluding all those candidates, who have appeared for counseling in other States or UTs (except for central counseling by Central Board of Secondary Education [for short 'the CBSE'] for 15% quota.
After notice, respondents have put in appearance whereas in the second writ petition bearing CWP No.18579 of 2013 titled as "Amanat Benipal Vs. State of Punjab and others", at the time of issuance of notice, learned counsel for the petitioner had prayed for issuance of notice only to respondents No.1 to 5 (official respondents), hence, no notice was given to the private respondents/students, who have got admissions.
In reply, learned counsel for respondents No.11 to 16, 18 to 20 and 23 to 25 has submitted that they did not appear in counseling in any other State. Insofar as respondent No.9 is concerned, it is submitted that since she has got admission in Shimla, therefore, no cause of action survives against her.
Learned counsel for respondents No.6 to 8 & 10 has submitted that they had appeared in counseling in Haryana but after surrendering their seats they have got CWP No.17750 of 2013 -5- CWP No.18579 of 2013 admission in Punjab. In this regard, they have referred to Clause 19 of Prospectus, which reads as under: -
"Any candidate, who has taken admission in the previous session or year prior to Session 2013 in any course governed by this notification, shall not be eligible to seek admission again on the basis of merit in NEET-UG- 2013.
However, if any candidate who is admitted during the academic session in any institute/course may opt for admission based on percentile marks of NEET-UG-2013 by submitting a sworn declaration at the time of counselling that he/she had surrendered the seat against which he was already admitted. To avoid the wastage of the seat, the candidate can avail this opportunity only, in case, the 2nd counselling is yet to take place, wherever the candidate wants to take admission."
In reply filed by the Registrar of the University, it is alleged that Clause 18 of the Prospectus has been duly CWP No.17750 of 2013 -6- CWP No.18579 of 2013 complied with as they had taken undertaking from all the private respondents before joining concerned Colleges. The format of 'Self Declaration' is reproduced as under: -
"Self Declaration I.................... S/o................................. Father/Mother/Guardian of ..............
and Permanent resident of (Give complete address)............................... do hereby declare and affirm that: -
1. My son/daughter/ward has not passed the qualifying examination from more than one Board/University.
2. My son/daughter/ward had not appeared for counselling for admission into MBBS in any other State/UT except central counselling by the Central Board of Secondary Education.
3. My son/daughter/ward has studied for 2 years in the school situated in Punjab State.
4. I further declare that if any of the information given by me or my son/daughter/ward at any stage CWP No.17750 of 2013 -7- CWP No.18579 of 2013 even after the admission, the admission is liable to be cancelled.
Date: - Signature of Deponent"
It is also alleged that out of respondents No.6 to 25, Akanksha Gulati (respondent No.9), Harmehar Narula (respondent No.19), Alish Rana (respondent No.21) and Abhishek Kumar (Respondent No.22) have surrendered their seats which were included in the vacancy position for conducting second counseling and the same has been offered to the eligible candidates. The 'Self Declaration' forms submitted by the answering respondents are also appended with the reply. Thus, the averments made in the writ petition are factually denied by the official respondents.
In this regard, learned counsel for the petitioners has submitted that the official respondents have changed the format of declaration which is provided in the Prospectus and has referred to the 'Self Declaration' form, which reads as under: -
"Self Declaration I.................... S/o................................. Father/Mother/Guardian of ..............
and Permanent resident of (Give complete address)............................... do hereby declare and affirm that: - CWP No.17750 of 2013 -8- CWP No.18579 of 2013
1. My son/daughter/ward has not passed the qualifying examination from more than one Board/University.
2. My son/daughter/ward has studied for 2 years in the school situated in Punjab State.
3. I further declare that if any of the information given by me or my son/daughter/ward at any stage even after the admission, the admission is liable to be cancelled.
Date: - Signature of Deponent"
Learned counsel for the respondents has
submitted that since the aforesaid format talks of qualifying examination from not more than one Board/University and about the studies undertaken in the school situated in the Punjab State, therefore, it does not need the requirement of Clause 18 of the Prospectus which also provides for a declaration of appearance in counseling in any other State / UT except central counseling by CBSE for which Admission Committee/University had decided to prescribe 'Self Declaration' form which has already been reproduced hereinabove.CWP No.17750 of 2013 -9-
CWP No.18579 of 2013
It is also submitted by counsel for the respondents that all the petitioners in the Ist petition have already got admission in various colleges namely, petitioner No.1 has got admission in MBBS course in Gian Sagar Medical College, Banur; petitioner No.2 has got admission in MBBS course in Adesh Medical College, Bathinda; petitioner No.3 has got admission in BDS Course in Dashmesh Dental College, Faridkot and petitioner No.4 has got admission in MBBS Course at SGRD Medical College, Amritsar. Therefore, the cause of action in the Ist petition does not survive.
Besides, the respondents have also referred to a Division Bench judgment of this High Court rendered in "Bharat Gupta Vs. State of Haryana and others" 2006(2) SCT 71, to contend that the availing of benefit can be alleged only when the offer made by the College is accepted by the student.
I have heard learned counsel for the parties and perused the record.
The short question involved in these cases is that if the private respondents have attended counseling in any other States besides State of Punjab and even got admission, their admission can be cancelled in view of declaration required under Clause 18 of the Prospectus.
It may be pertinent to mention that Clause 18 of the Prospectus deals with two aspects. First that the CWP No.17750 of 2013 - 10 - CWP No.18579 of 2013 candidate has to declare that he has not passed qualifying examination from more than one Board or University and second that he had not appeared in counseling in any other State/UT except central counseling by CBSE, meaning thereby, the candidate can appear in the 15% All India Quota meant for the central counseling under the CBSE but cannot appear in counseling in any other State/UT. At the same time, it is provided in Clause 19 of the Prospectus that if any candidate who is admitted during the academic session i.e. 2013-14 in any institute/course may opt for admission based on percentile marks of NEET-UG-2013 by submitting a sworn declaration at the time of counselling that he/she had surrendered the seat against which he was already admitted. In order to avoid the wastage of the seat, such benefit can be availed only in case the 2nd counselling is yet to take place, wherever the candidate wants to take admission. As already submitted and since there is no denial that some of the private respondents did not attend counseling outside the State of Punjab, therefore, the grievance of the petitioners against them is totally misplaced. Similarly, one of the respondents No.9 has got admission at Shimla, therefore, the writ petition against her does not survive. Insofar as other respondents are concerned, respondents No.6 to 10 have categorically stated that they had taken admission in the State of Haryana but surrendered their seats and have given CWP No.17750 of 2013 - 11 - CWP No.18579 of 2013 admission in terms of Clause 19 of the Prospectus in the State of Punjab. It is also not denied that the petitioners do not stand anywhere in terms of their merit for the purpose of getting admission even in case the admissions of private respondents are cancelled as desired by them. Moreover, the petitioners in the Ist petition have already got admission elsewhere. Besides, the above in the case of Bharat Gupta (Supra), the following observations has been made by a Division Bench of this Court: -
"Does the action of a candidate, who applies for admission to a course in a particular State against the State quota seats, and/or appears in an examination therefore, merely stand in a queue for seeking a benefit? In other words, is a benefit vested in a candidate merely on the basis of an action of applying for admission or appearing in a test for such admission? Alternatively, should a benefit be deemed to have been availed by a candidate seeking admission, only after having participated in the process of selection, he gains admission to the course applied for? It is apparent from CWP No.17750 of 2013 - 12 - CWP No.18579 of 2013 the conclusion drawn in the foregoing paragraph, that an answer in the affirmative to the first question posed in the instant paragraph, would result in an anomalous conclusion. A candidate, in our view, can be deemed to have availed a benefit, only when he is a recipient of the claim sought. The act/action of a candidate in applying for admission, or in appearing in an entrance test, is obviously with the objective of fulfilling his desire/claim to gain admission. A candidate desiring/claiming admission can, therefore, be deemed to have availed of a benefit only when the said desire/claim is fulfilled. All or any intermediate stages in the process of gaining admission cannot, therefore, be treated as acts/actions whereby such a candidate can be considered to be recipient of a benefit. In the aforesaid view of the matter, it is only possible to accept, that a candidate is deemed to have obtained the benefit of residence CWP No.17750 of 2013 - 13 - CWP No.18579 of 2013 when the candidate having appeared for admission against the 85% State quota seats, and having attained the requisite merit, accepts admission to the course.
The conclusions drawn in the foregoing two paragraphs can be evaluated and examined from a different angle as well. We have extracted above the terms and conditions prescribed by the State of Haryana, on the fulfillment of which, a candidate can seek admission as a resident of that State. A separate but similar set of conditions has been prescribed by the State of Punjab, under which a candidate can seek admission as a resident of the said State. Be that as it may, a perusal of the terms and conditions expressed by the two States envisage, that a candidate can be eligible for admission as a resident of both the States. In other words, the same candidate may very well fulfill the conditions of being a resident of the State of Haryana in CWP No.17750 of 2013 - 14 - CWP No.18579 of 2013 terms of the instructions issued by the State of Haryana, and can also be eligible for admission in the State of Punjab as a resident of the said State. That being so, it would obviously be open to such a candidate to make a choice between the two States in the fulfillment of his desire to seek admission. Such choice can obviously be restricted, as has been done, by incorporating in the affidavit required to be filed by the parent/guardian of the candidate affirming, that the candidate in question has not sought the benefit of residence in any other State. Such a restriction, in our view, would be in consonance with the provisions of the Constitution of India and also in conformity with the legal position declared by the Apex Court, on the basis of which the 85% State quota seats are reserved on the basis of residence separately for every State. In our view, it would be wholly unreasonable to deprive a candidate CWP No.17750 of 2013 - 15 - CWP No.18579 of 2013 who fulfils the conditions of eligibility prescribed in terms of residence, if he is debarred from even competing in the process of admission. The only fair manner in examining the issue in hand is, to ensure that every candidate is afforded an opportunity of entering the fray of the selection process, for which he is eligible, and having participated in the same, to allow him to exercise his option and choose one of the States for which he fulfils the condition of residence, as the State of his choice wherein he would desire to pursue his academic career. Having exercised his choice for a particular State, the clause under reference would come into play as, such a candidate will be deemed to have "obtained the benefit of residence"
for such State, and therefore, would be ineligible for admission in any other State. Examining the issue in any other manner would, amount to the negation of the rights of such a candidate(s), envisaged under Articles 14 and 15 of CWP No.17750 of 2013 - 16 - CWP No.18579 of 2013 the Constitution of India. On the basis of the conclusions recorded in the foregoing three paragraphs, we are of the considered view, that the private respondents herein, cannot be deemed to have availed the benefit of residence, in States other than the State of Haryana, merely by applying for admission to the MBBS course against the 85% State quota seats in such States (other than the State of Haryana); or even by appearing in the entrance test conducted by such States. We, therefore, hereby hold, that a candidate will be deemed to have availed the benefit of residence of a State, only after he accepts admission in the said State, on the basis of residence. The sole contention of the learned Counsel for the petitioner is, that the private respondents had applied for admission to the MBBS course in States other than the State of Haryana, and that, they had appeared in the entrance tests held by the said CWP No.17750 of 2013 - 17 - CWP No.18579 of 2013 States. It is not the case of the petitioner, that any of the private respondents had ever availed the benefit of residence, for gaining admission to any course, in any State other than the State of Haryana. In view of the above, we find no merit in the claim of the petitioner, that the admission granted to the private respondents, in institutions located in the State of Haryana, was wrongful because they had availed benefits in other States on the basis of their residence in such States. Finding no merit in the claim of the petitioner, we hereby dismiss the present writ petition.
Thus, in view of the factual position, available on record, that even the declarations have been submitted and before taking admission the seats have been surrendered, I do not find any merit in both the writ petitions. Hence, the same are hereby dismissed.
(RAKESH KUMAR JAIN) 27.09.2013 JUDGE Vivek Pahwa Vivek 2013.10.01 13:51 I attest to the accuracy and integrity of this document