Himachal Pradesh High Court
Shivam Sharma vs State Of H.P. & Ors. on 13 July, 2018
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 1353 of 2018 a/w CWP Nos. 1347,
1354, 1355, 1374, 1375, 1384, 1393, 1413,
1416, 1501, 1504 to 1508, 1517 & 1524 of
.
2018.
Reserved on: 5.7.2018.
Decided on: 13.7.2018.
1. CWP No. 1353 of 2018.
Shivam Sharma Versus State of H.P. & ors.
2. CWP No. 1347 of 2018.
Ms. Lavanya Kashiv Versus State of H.P. & ors.
3. CWP No. 1354 of 2018.
Kartik Singh Versus State of H.P. & ors.
4. CWP No. 1355 of 2018.
Rashmi Versus State of H.P. & ors.
5. CWP No. 1374 of 2018.
Isha Sharma Versus State of H.P. & ors.
6. CWP No. 1375 of 2018.
Abhishek Singh Versus State of H.P. & ors.
7. CWP No. 1384 of 2018.
Aman Sharma Versus State of H.P. & ors.
8. CWP No. 1393 of 2018.
Nishant Thakur Versus State of H.P. & ors.
9. CWP No. 1413 of 2018.
Kartik Katoch Versus State of H.P. & ors.
10. CWP No. 1416 of 2018.
Vibhuti Versus State of H.P. & ors.
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2
11. CWP No. 1501 of 2018.
Vikas Thakur Versus State of H.P. & ors.
.
12. CWP No. 1504 of 2018.
Devika Sood Versus State of H.P. & ors.
13. CWP No. 1505 of 2018.
Akanksha Sharma Versus State of H.P. & ors.
14. CWP No. 1506 of 2018.
Arya Prashar Versus State of H.P. & ors.
15. CWP No. 1507 of 2018.
Archit Sharma Versus State of H.P. & ors.
16. CWP No. 1508 of 2018.
Oshin Puri Versus State of H.P. & ors.
17. CWP No. 1517 of 2018.
Saurav Sandal Versus State of H.P. & ors.
18. CWP No. 1524 of 2018.
Aayush Gupta Versus State of H.P. & ors.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? 1. Yes.
For the petitioner: M/S. Sunil Mohan Goel, K.B. Khajuria, Vinod
Chauhan, Pardeep K. Sharma, Raj Negi, Pawnish
K. Shukla, Vivek Singh Thakur, Adarsh K.
Vashisht, Advocates for the respective petitioners.
For the respondents: Mr. Ashok Sharma, AG with Mr. Ajay Vaidya, Sr.
Addl. AG and Mr. Nand Lal Thakur, Addl. AG for
the respondent-State.
1
Whether reporters of the local papers may be allowed to see the judgment?
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3
Mr. Neel Kamal Sharma, Advocate for respondent-
University.
Sh. Shrawan Dogra, Sr. Advocate with M/S.
Bharat Thakur, Devan Khanna and Harsh Kalta,
.
Advocates for respondent No. 4 in CWP No. 1353
of 2018.
Mr. B.C.Negi, Sr. Advocate, with Mr. Nitin Thakur,
Advocate for respondent No. 5 in CWP No. 1353 of
2018.
Mr. R.M. Bisht, Advocate for respondent No. 6 in
CWP No. 1353 of 2018.
Mr. Ravinder Thakur, Advocate, for respondent No.
7 in CWP No. 1353 of 2018.
--------------------------------------------------------------------------------------------
Justice Dharam Chand Chaudhary, J.
This judgment shall dispose of the present writ petition and its connected matters CWP Nos. 1347, 1354, 1355, 1374, 1375, 1384, 1393, 1413, 1416, 1501, 1504 to 1508, 1517 and 1524 of 2018. The petitioners in these writ petitions except in CWP No. 1501 of 2018 and respondents No. 4 to 7 in this writ petition are the children of bona fide Himachalis either employed in private sector or being in private occupation outside the State of Himachal Pradesh. The petitioner in CWP No. 1501 of 2018 and respondents No. 4 to 7 in this petition are the children of bona fide Himachalis employed either in the Central Government departments/other State Governments/local and other authorities owned and controlled by the Central Government/other State Governments. In Himachal Pradesh, in terms of item No. IV (A) 1 of the Prospectus published for the academic session 2018-19, one of the eligibility conditions is passing of two examinations out of the following four from the schools situated within the territory of Himachal Pradesh:
(a) Middle or equivalent ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 4
(b) Matric or equivalent
(c) 10+1 or equivalent
(d) 10+2 or equivalent.
.
2. In the recent past, the exemption from the condition of passing two examinations out of four indicated above was available to the category of the petitioners and that of the category of the petitioner in CWP No. 1501 of 2018 under clause 3(ii) and 3(iv) read with Note 1 below it as is apparent from the Prospectus up to the academic session 2017-18. However, in the Prospectus published by the respondents for admission to the MBBS/BDS courses in the colleges situated in the State for the academic session 2018- 19, the provisions i.e. item No. 3(iv), words "private occupation" in Clause 3 and Note 1 stands deleted and thereby the exemption from passing the condition of two examinations from the schools situated in the State of Himachal Pradesh has been withdrawn. While clause 3 (iv) was deleted well before the publication of Prospectus, the Note 1 and words "private occupation" in clause 3 of main item No. IV (A) were deleted vide Corrigendum dated 12.6.2018 Annexure P-10 and Corrigendum-II dated 13.6.2018 Annexure P-12. Since the petitioners in these writ petitions except respondents No. 4 to 7 in this petition and petitioner in CWP No. 1501 of 2018 have assailed the decision so taken by the respondents on the grounds of being discriminatory, arbitrary, illegal, un-Constitutional and violative of Article 14 of the Constitution of India on several grounds, particularly that allowing such exemption to the category of the petitioner in CWP No. 1501 of 2018 and respondents No. 4 t0 7 in the main writ petition under clause 3(ii) of main item No. IV (A) in the Prospectus, ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 5 therefore, the parties on both sides were heard at length on 26.6.2018 and even on 5.7.2018 also.
.
3. As a matter of fact, on hearing arguments on 26.6.2018, the writ petitions were posted for pronouncement of judgment to 29.6.2018, however, instead of pronouncement of judgment, a detailed order has been passed on that day for the reasons recorded therein as without hearing the candidates qualified for appearance in counseling from the exempted category 3(ii) of item No. IV (A) in the Prospectus, it was deemed appropriate not to dispose of the writ petitions finally without hearing the candidates belonging to above said exempted category. However, not only the petitioners in these writ petitions except in CWP No. 1501 of 2018 were allowed to participate in the counseling but those qualified from exempted category 3(ii) supra were also allowed to appear in counseling provisionally with a direction to the respondents not to admit them to the course without the leave of the Court.
4. The candidates belonging to the exempted category i.e. clause 3(ii) have now filed CWP No. 1501 of 2018 and also sought their impleadment in the main matter i.e. CWP No. 1353 of 2018. Though, they have not filed response to the civil writ petition but their response, in a nut shell, is that providing exemption to their category has already been held legal and valid by a Division Bench of this Court in Vikram Singh Negi vs. State of H.P., (2009) 2 Sim. L. C. 362. Therefore, according to them, the petitioners in other writ petitions are not justified in claiming that allowing the exemption to their category is discriminatory in nature.
::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 65. Now, all these matters have to be considered in the light of the above background and also taking into consideration the given facts and .
circumstances. We have taken note of the facts in detail in our order passed in these matters on 29.6.2018. Therefore, mentioning the same again would be nothing but merely a repetition to overload the judgment unnecessarily. Anyhow, for the sake of convenience, the facts as we have noticed in the order ibid are being reproduced here as under:
"The petitioners in these writ petitions are the children/wards allegedly of bonafide Himachalies living outside the State of Himachal Pradesh on account of job of their parents in private sector/being in private occupation. In the recent past, the exemption to this category of the candidates for r seeking admission to MBBS/BDS courses in medical/dental colleges situated in the State on the basis of their merit in All India National Eligibility-cum-entrance test (in short NEET-UG-2018) qua passing two out of the following four examinations i.e. "1) Middle or equivalent, 2) Matric or equivalent, 3) 10+1 or equivalent and 4) 10+2 or equivalent from the schools/colleges situated in the State, of course on furnishing the requisite certificates appended to the Prospectus was introduced. However, the respondents now deleted such provisions from the Prospectus (Annexure P-13 to one of the CWPs i.e CWP No. 1353 of 2018) published for admission to above courses for academic session 2018-19. They are aggrieved by such action on the part of the respondents deleting the provisions granting exemption to their category from the condition of passing at least two examinations out of four from the schools/colleges situated in this State.
2. The grouse of the petitioners, as brought to this Court, in a nut shell, is that they had to undertake their studies in the schools outside the State of Himachal Pradesh on account of their parents, though bonafide Himachalies, however, residing outside in connection with their job in private sector/they being in private occupation. Such exemption being provided to the students of their categories since long and even in the Prospectus Annexure P-11 published initially on 12.6.2018 for the academic session 2018-19 also and they having applied for admission under the State quota seats i.e. 85%, the deletion of the provisions ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 7 granting exemption to them by way of two corrigendum(s) Annexures P-10 & P-12 left them high and dry and their right to seek admission is restricted to remaining 15% seats to be filled in at All India Level. They will not be able to get .
admission in any Government or private College either in the State or elsewhere. Such action on the part of the respondents has been sought to be quashed allegedly being irrational and illegal besides being arbitrary as the same has debarred the children of the bonafide Himachalies working in private sector and doing private business outside the State that too while continuing benefit of such exemption in favour of the children of serving/retired employees of the Central Government/UT/ Other State Governments and children of employees of the Autonomous Organizations/Semi-Government Bodies of Central Government/UT/Other State Governments, hence, in clear violation of Article 14 of the Constitution of India. It has also been emphasized that the respondents have considered the children of the bonafide-Himachalies serving in Central Government/other States/UTs and other organization/local bodies eligible for State quota seats and arbitrarily debarred the similarly situated children i.e. (the petitioners ) of those persons who are either working in private sector or doing some private business outside the State and thereby created a separate class within the same class which allegedly is in clear violation of fundamental rights of the petitioners.
3. The response of the respondent-State, filed in one of the Writ Petitions i.e. CWP No. 1353 of 2018, in a nut shell, is that the exemption to the children of bonafide Himachalies residing outside the State in connection with their employment in private sector/occupation from the requirement of passing two examinations out of the four indicated in the Prospectus was given for the first time in the year 2013-14. This year, the respondent-State has constituted Prospectus Review Committee to finalize the Prospectus for conducting centralized counselling for admission to MBBS/BDS courses in Government Medical/Dental Colleges including Private Medical/Dental Colleges (State/Management Quota) situated in the State of Himachal Pradesh on the basis of their marks/ranks in NEET-UG-2018 for the academic session 2018-19. The Committee, on having considered various provisions in the Prospectus had decided to remove the provision from the Prospectus governing exemption to children of employees of private sector/private occupation from the condition of passing two examinations out of four from the schools situated in Himachal Pradesh.
4. The recommendations made by the Committee were considered and approved by the competent authority and ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 8 thereafter the Prospectus Annexure P-11 was published. Although, exemption from the condition of passing two examinations to category of the petitioners came to be deleted from the prospectus yet, at certain places therein the same got .
reflected by way of an inadvertent mistake. On noticing such mistakes in the Prospectus, the Corrigendum Annexure P-10 and Corrigendum-II Annexure P-12 came to be issued on the very next day of the publication of the Prospectus i.e. 13.6.2018.
5. The specific stand of the respondent-State, therefore, is that there is no provision in the Prospectus published for the academic session 2018-19 providing exemption from the condition of passing two examinations out of four from the Schools situated in Himachal Pradesh in favour of the category of the petitioners being already stood deleted, therefore, they cannot be heard of any complaint of allegedly arbitrarily debarred from seeking admission against State Quota seats in MBBS/BDS courses from the Government/private colleges situated in the State of Himachal Pradesh.
6. The note below item No. XXIV in the Prospectus reserves the right in favour of respondent-State to make any change/amendment in the Prospectus and that the same shall be binding on the students. The two corrigendums issued by the respondent-State making corrections in the Prospectus, therefore, has been claimed to be legal and valid. When the substantial provision providing exemption to the employees of the private sector/the persons in private occupation outside the State stood withdrawn from the Prospectus, issued on 12.6.2018, therefore, issuance of the corrigendum on the very next date i.e. 13.6.2018 to correct certain inadvertent clerical errors is neither illegal nor un-constitutional. Even if the two corrigendums are withdrawn, in that event also the petitioners would not be eligible for admission because the Prospectus issued on 12.6.2018 did not contain any exemption clause in favour of their category which already stood deleted on the recommendation of the Prospectus Review Committee.
5. The respondent-State, while prescribing the eligibility criteria for seeking admission for MBBS/BDS courses in the State from 1995-96 onwards, had taken a conscious decision after taking into consideration various aspects like topography of the State, social status, financial and economic conditions of the people and educational facilities had ensured that the students from the State get a chance of seeking admission in such courses. An effort has been made to bring them to compete with the students having studied in better institutions outside the State with better ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 9 facilities and exposure. The fact that the students of this State were not getting medical education outside the State and as regards medical/dental colleges situated in the State, it is the students belonging to and studied in other States/Universities .
and Colleges managed to get admissions in MBBS/BDS courses in the State, therefore, the condition of passing at least two examinations out of four at school level was prescribed long back in the year 1995-96. The decision so taken was held as legal and valid even by a Division Bench of this Court also in Gagandeep vs. State of H.P. and connected matters, (1996) 1 S.L.C. 242. The exemption from passing such two examinations from the schools situated in the State of Himachal Pradesh in favour of the category of the petitioners was for the first time introduced in the year 2013-14 and the same now stands withdrawn from this academic session being not giving a level playing field to the students who have done their schooling from the State of Himachal Pradesh.
6. The provisions qua prescribing the condition of passing two examinations out of four from the schools situated in the State of Himachal Pradesh except for in CWP No. 1414 of 2018 is not under challenge in these writ petitions and rightly so because such eligibility criteria has been held legal and valid by a Division Bench of this Court in Gagandeep's case (supra).
6. It is in this backdrop, Mr. Sunil Mohan Goel, Advocate assisted by S/Sh. K.B. Khajuria, Vinod Chauhan, Pradeep K. Sharma, Raj Negi, Pawnish K. Shukla, Vivek Singh Thakur, Adarsh K. Vashishta, Advocates and Sh. Ashok Sharma, Advocate General assisted by Mr. Ajay Vaidya, Sr. Addl. Advocate General, Mr. Vikas Rathore, Addl. AG and Mr. Narinder Guleria, Addl. AG were heard at length on 26.6.2018 and also on 5.7.2018.
On behalf of another exempted category i.e the children of retired/serving Central Government, other State Governments as well as local and other authorities owned and controlled by the Central Government/State Governments falling under clause 3(ii) of item IV (A), we have heard Sh.
::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 10Shrawan Dogra Sr. Advocate and Sh. B.C. Negi, Sr. Advocate assisted by S/Sh. R.M. Bisht, Ravinder Thakur and Nitin Thakur, Advocates.
.
7. Mr. Sunil Mohan Goel, Advocate has emphasized that denial of exemption to the category of petitioners i.e. children of bonafide himachalis working in private sector/being in private occupation outside the State from passing of two examinations from the Schools situated in the State abruptly at a stage after declaration of the result of NEET (UG) 2018 by way of deleting clause 3(iv) of main item IV (A) in the last year Prospectus Annexure P-8, has taken the petitioners to surprise and thereby snatched away their right of seeking admission to MBBS/BDS courses in the colleges situated in the State that too when such concession has been allowed to continue in favour of the category of the petitioners in CWP No. 1501 of 2018 and respondents No. 4 to 7 in CWP No. 1353 of 2018, similarly situated as their parents are also residing outside the State in connection with their job either in Central Government or State Governments or Board/Corporations and other Authorities owned and controlled by the Central/State Governments. The denial of such exemption to the category of the petitioners according to Mr. Goel is in sheer violation of Article 14 of the Constitution of India. According to Mr. Goel, the respondents by deleting the provisions qua exemption from passing two examinations from the schools situated in the State being provided to the category of the petitioners vis-a-vis the exempted category i.e. 3(ii) has made a classification which is not founded on intelligible differentia and rather distinguishes the petitioners and the children of ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 11 other exempted category 3(ii) viz. similarly situated were grouped together. Also that, the differentiation as made has no rationale relation to .
the object sought to be achieved. It has also been urged that by deleting the exemption available to the category of the petitioners in recent past they remained high and dry and shall have to compete against limited 15% All India Quota seats. It has also been urged that the parents of the petitioners are residing outside the State to earn their livelihood by working in private sector and also being in private occupation as they did not get any employment in the State. Also that when the Prospectus Annexure P-
11 for admission in the academic session 2018-19 was issued/published, the provisions qua exemption to the category of the petitioners could have not been withdrawn by way of Corrigendums Annexures P-10 and P-12.
Besides the above submissions, Mr. Sunil Mohan Goel, Advocate to urge that when the condition of passing two examinations out of the four from the schools situated in the State was upheld by a Division Bench of this Court in Gagan Deep vs. State of H.P. 1996(1) Sim. L.C. 242, therefore, providing exemption from such condition to other category excluding the category of the petitioners is arbitrary exercise of power by the respondent-
State.
8. Now, if coming to the arguments addressed on behalf of respondents, Mr. Ashok Sharma, learned Advocate General has strenuously contended that a decision to delete item 3(iv) of item No. IV(A) was taken by the competent authority at highest level and the Prospectus Annexure P-11 for the academic session 2018-19 when published, the said ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 12 clause did not find mention therein. Merely that in clause 3 words "private occupation" and Note No. 1 below it came to be reflected by way of mistake .
does not extend any right in favour of the petitioners to seek exemption since the mistake occurred in the Prospectus Annexure P-11 which was rectified on the very next date i.e. 13.6.2018 by issuing impugned Corrigendums Annexures P-10 and P-12. The candidates in merits from the category of the petitioners were well aware of the withdrawal of the concession being availed by them up to the academic session 2017-18.
Therefore, they have not been taken to surprise or by such a decision left high and dry. Also that the rules governing the eligibility condition are clause 1 & 2 of main item IV (A) whereas clause 3 an exception. The exception i.e. 3(iv) of item IV (A) allegedly unreasonable is stated to be rightly deleted. The decision so taken by the respondent-State is neither arbitrary nor violative of Article 14 of the Constitution of India. Withdrawal of concession to the category of the petitioners from the ensuing academic session is a policy decision, hence, doctrine of "legitimate expectation" is not attracted in the instant cases. Learned Advocate General has also urged that while taking a decision to withdraw the concession granted to the category of the petitioners, the interest of the State and also the people residing here was the only paramount consideration. Such a decision, according to learned Advocate General can be assailed in a case of manifest arbitrariness which is something done by the Legislature capriciously, irrationally and whimsically. The decision of the respondent-State is, however, not tainted thereby. Learned Advocate General has also argued ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 13 that mere differential treatment does not amount to violation of Article 14 of the Constitution of India. It violates only when no conceivable and .
reasonable basis exists for such differentiation. Learned Advocate General has, therefore, contended that the exemption granted to the children of retired/serving central government employees/state government employees/other authorities owned and controlled by Central/State Governments under clause 3(ii) of main item IV(A) is absolutely legal and valid, however, such exemption being availed by the category of the petitioners under clause 3(iv) as per the Prospectus for the last academic session 2017-18 has rightly been withdrawn by the respondent-State.
9. Mr. Shrawan Dogra, Sr. Advocate assisted by S/Sh. R.M. Bisht, Ravinder Thakur and Bharat Thakur, Advocates while addressing arguments on behalf of respondents No. 4 to 7 in the main matter have placed reliance on the judgment of the Division Bench of this Court in Vikram Singh Negi's case cited supra and submitted that such exemption granted to the children of this category has been held legal and valid and the judgment so passed has attained finality. The petitioners in this petition and also the remaining petitions (except CWP No. 1501 of 2018), therefore, according to Mr. Dogra cannot seek parity with the children belonging to exempted category 3(ii) under main item IV(A) which still exists in the Prospectus Annexure P-13 published for admission to MBBS/BDS courses during the academic session 2018-19. It is a policy decision taken by the respondent-State, the policy maker and ousted them from seeking exemption by taking such a decision. Similar are the ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 14 submissions made on behalf of petitioner in CWP No. 1501 of 2018 by Mr. B.C. Negi, Sr. Advocate assisted by Mr. Nitin Thakur, Advocate.
.
10. On analyzing the rival submissions as aforesaid, the following points arise for determination in these petitions:
1. Whether withdrawal of exemption to the category of the petitioners in these writ petitions except CWP No. 1501 of 2018 is violative of Article 14 of the Constitution of India being not founded on an intelligible differentia and there being no relation between such differentia and the object sought to be achieved?
2. Whether the category of the petitioners and the children of exempted category 3(ii) of item No. IV (A) being identical forms a group hence withdrawing of exemption from condition of passing two exams from one of the category i.e. of the petitioners creates a class within a class and also distinguishes the category of the petitioners from that of the so called other exempted category 3(ii) of item No. IV (A), is discriminatory?
3. Whether the Prospectus Annexure P-11 initially issued for admission in MBBS/BDS courses was containing the provision qua exemption to the category of petitioners in addition to the private respondents in the main matter and petitioner in CWP No. 1501 of 2018 and that the respondent-State by way of Corrigendum(s) Annexures P-10 and P-12 has illegally withdrawn the same from their category?
11. Before coming to the above points framed for discussion, it is deemed appropriate to note down the eligibility and qualification for ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 15 seeking admission against State quota seats in MBBS/BDS courses in the State of Himachal Pradesh and the provisions qua exemption therefrom to .
the category of the petitioners under these writ petitions and the category of the petitioner in CWP No. 1501 of 2018. The relevant text of the Prospectus for the academic session 2017-18 Annexure P-8, Prospectus issued initially for the current academic session 2018-19 Annexure P-11 and modified provisions in the Prospectus Annexure P-13, issued after issuance of the Corrigendums Annexures P-10 and P-12 reads as under:
"Prospectus for the academic session 2017-18:
IV. ELIGIBILITY AND QUALIFICATIONS (A) For State Quota Seats :
1. Children of Bonafide Himachali/Himachal Govt. employees and employees of autonomous bodies wholly or partially financed by the Himachal Pradesh Government who qualified the NEET-UG-2017 will only be eligible to apply for admission to MBBS/BDS Courses through Counseling in Government Medical/Dental Colleges including State Quota seats in Private unaided Medical/Dental Colleges situated in Himachal Pradesh. They should have passed atleast two exams out of the following examinations from the recognized schools or colleges situated in the State of Himachal Pradesh and affiliated to ICSE/CBSE/H.P. Board of School Education or equivalent Boards/ Universities established by law in India.
(a) Middle or equivalent
(b) Matric or equivalent
(c) 10+1 or equivalent
(d) 10+2 or equivalent x x x x x xx x x xx x x x xx x
3. Following categories of candidates are exempted from the condition of passing the examinations from recognized schools affiliated to ICSE/CBSE/HP Board of School Education and situated within Himachal Pradesh provided that the candidates of these categories should be Bonafide Himachali and their father/mother are living outside Himachal Pradesh on account of their service/posting /private occupation. In such cases, non-
schooling in Himachal Pradesh shall not debar them from competing against any of the seats whether reserved or otherwise (except backward area seats):-
x x xx x x x x x x x x x x x x x
(ii) Children of serving /retired Employees of Central Government/U.T./Other State Governments and Children of Employees of ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 16 the Autonomous Organizations/Semi Government Bodies of Central Government/U.T./Other State Governments.
xxxxxxxxxxxxxxxx .
(iv) Children of employees of Private Sector / Private occupation.
Note : (1) The candidates claiming exemption for passing two examination from the schools situated in Himachal Pradesh under the category (iv) mentioned above, should have passed their schooling from the schools situated in the place /station where their parents are residing.
x x x x x x x x x x x"
"Prospectus issued initially for the academic session 2018-19:
IV. ELIGIBILITY AND QUALIFICATIONS (A) For State Quota Seats :
1. Children of Bonafide Himachali/domicile/Himachal Govt. employees and employees of autonomous bodies wholly or partially financed by the Himachal Pradesh Government who qualified the NEET-UG-2018 will only be eligible to apply online for admission to MBBS/BDS Courses through Counseling in Government Medical/Dental Colleges including State Quota seats in Private unaided Medical/Dental Colleges situated in Himachal Pradesh. They should have passed atleast two exams out of the following examinations from the recognized schools or colleges situated in the State of Himachal Pradesh and affiliated to ICSE/CBSE/H.P. Board of School Education or equivalent Boards/ Universities established by law in India.
(a) Middle or equivalent
(b) Matric or equivalent
(c) 10+1 or equivalent
(d) 10+2 or equivalent xxxxxxxxxxxxxx
3. Following categories of candidates are exempted from the condition of passing the examinations from recognized schools affiliated to ICSE/CBSE/HP Board of School Education and situated within Himachal Pradesh provided that the candidates of these categories should be Bonafide Himachali and father/mother are living outside Himachal Pradesh on account of their service/posting /private occupation . In such cases, non-schooling in Himachal Pradesh shall not debar them from competing against any of the seats whether reserved or otherwise (except backward area seats):-
xxxxxxxxxxxxx
(ii) Children of serving /retired Employees of Central Government/U.T./Other State Governments and Children of Employees of the Autonomous Organizations/Semi Government Bodies of Central Government/U.T./Other State Governments.::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 17
Note : (1) Candidates claiming exemption for passing two exams from H.P. school(s) under the categories as mentioned in sub clauses (ii) & (iii) above of clause 3 shall also submit a certificate on the prescribed format as given in .
the Prospectus at Appendix A-12, A-13 with the application form in original, as applicable.
x x x x x x x x x x x"
"Prospectus with modified eligibility and qualifications issued for the academic session 2018-19 after issuance of two Corrigendums on 13.6.2018:
IV. ELIGIBILITY AND QUALIFICATIONS (A) For State Quota Seats :
1. Children of Bonafide Himachali/Domicile/Himachal Govt. employees and employees of autonomous bodies wholly or partially financed by the Himachal Pradesh Government who qualified the NEET-UG-2018 will only be eligible to apply ONLINE for admission to MBBS/BDS Courses through counselling in Government Medical/Dental Colleges including State Quota seats in Private un-aided Medical/Dental Colleges situated in Himachal Pradesh. They should have passed at least two exams out of the following examinations from the recognized schools or colleges situated in the State of Himachal Pradesh and affiliated to ICSE/CBSE/H.P. Board of School Education or equivalent Boards/Universities established by law in India.
(a) Middle or equivalent
(b) Matric or equivalent
(c) 10+1 or equivalent
(d) 10+2 or equivalent xxxxxxxxxxxx
3. Following categories of candidates are exempted from the condition of passing the examinations from recognized schools affiliated to ICSE/CBSE/HP Board of School Education and situated within Himachal Pradesh, provided that the candidates of these categories should be Bonafide Himachali and their father/mother are living outside Himachal Pradesh on account of their service/posting. In such cases, non-schooling in Himachal Pradesh shall not debar them from competing against any of the seats whether reserved or otherwise (except backward area seats):-
xxxxxxxxxxx
(ii) Children of serving /retired employees of Central Government/U.T./Other State Governments and Children of employees of the Autonomous Organizations/Semi Government Bodies of Central Government/U.T./Other State Governments.
x x x x x x x x x x x"
::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 1812. It is thus seen that clause 3(iv) which was in the Prospectus Annexure P-8 qua providing exemption to the category of the petitioners .
from the condition of passing two examinations from the schools situated in the State of H.P. was withdrawn and as it was not there in the Prospectus Annexure P-11 issued initially for the academic session 2018-
19. Although in clause 3 words "private occupation" and Note 1 figured in the Prospectus were also removed by way of issuance of two Corrigendums Annexures P-10 & P-12 on the very next day i.e. 13.6.2018. We have dealt with this aspect of the matter in para 10 to 12 of our order passed in these matters on 29.6.2018, which reads as follows:
"10. In this view of the matter, the provisions regarding exemption to the category of the petitioners ceased to exist on 12.6.2018 on deletion of the category of the petitioners i.e. Clause No. 3(iv) below item No. IV (A) in the Prospectus Annexure P-13, issued for the academic session 2018-19 published on 12.6.2018. The date, as per schedule for submission of online applications also commenced on 12.6.2018 itself, which had to continue up to 20.6.2018. On the very next day i.e. 13.6.2018, even words "private occupation" in Clause 3 of item No. IV(A) and also Note (1) below it in the Prospectus (Page 17) came to be omitted by way of Corrigendums Annexures P-10 and P-12. Meaning thereby that after 13.6.2018, there hardly remained any provision in the Prospectus providing exemption to the category of the petitioners, hence, these writ petitions.
11. Prima-facie, we are satisfied that in the Prospectus Annexure P-11 initially issued for the academic session 2018- 19, the category of the petitioners does not find mention on deletion of clause 3 (iv) of item No. IV (A) thereof. Being so, merely that in clause 3 words "private occupation" figured and note(1) also came to be reflected in the Prospectus Annexure P- 11, the petitioners prima-facie are not justified in claiming that they have a right to avail the exemption which the students in their category had earlier been availing for the reason that their category has already been deleted from the Prospectus Annexure P-11 initially issued for the current academic ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 19 session. The reflection of words "private occupation" and Note (1), to our mind, is the result of either clerical mistake or inadvertent mistake. Anyhow, such reflection in clause 3 and note (1) also came to be deleted vide Corrigendum Annexures .
P-10 and P-12. In view of the note below item No. XXIV of the Prospectus, Annexure P-13, the respondent-State and for that matter University, as the case may be, has the right to make any change/amendment in the Prospectus and that the same shall be binding on the students. In view of the deletion of the main provisions from the Prospectus, words "private occupation" and Note (1) supra came to be omitted in the Prospectus Annexure P-11 initially issued for the academic session 2018-19 by way of mistake. Such mistakes in view of the judgment of the Supreme Court in Union of India and another vs. Narendra Singh, 2008 (2) SCC 750, can be corrected and even if such correction may be harsh to a party.
12. Now, if coming to the records, the decision to delete the exemption from passing two school examinations out of four from the school situated in the State of Himachal Pradesh, was already taken on 9.6.2018 by the competent authority on the basis of the report of the Prospectus Review Committee. Therefore, on this score also, we are prima-facie satisfied that the petitioners were not taken to surprise because Prospectus forwarded for publication on 11.6.2018 was published on 12.6.2018, no doubt on that very day when submission of the online applications for seeking admission commenced. We are also satisfied prima-facie that providing such exemption to the category of the petitioners from the condition of passing two examinations from the schools situated in the State at the cost of socially and economically backward students of this State, where in the name of Coaching Centres etc. having no such facility and irrespective of adverse circumstances secure good ranking in the test is rather harsh and oppressive to them and not to the petitioners who in our opinion may take chance to seek admission in the States where their parents are residing in connection with their job in private sector or private occupation. Since number of bonafide Himachalies are residing outside the State in connection with their job in private sector/private occupation, therefore, providing exemption from passing two examinations out of four from the schools situated in the State of Himachal Pradesh would negate the same and oust the students of this State from competition because it is not possible to the students of this State to compete with the students having studied in the schools outside the State with better facilities and infrastructure. Above all, the condition of passing atleast two examinations out of the four from the schools/colleges ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 20 situated in the State has nexus with the object sought to be achieved because hospitals in the State of Himachal Pradesh are situated in remote areas, including tribal belt where only the Himachali graduated doctors can render their services and .
as regards the outsiders, normally they run away from the State being not accustomed with the prevailing weather conditions in such areas."
13. Being so, it would not be improper to conclude that the provisions qua providing exemption to the category of the petitioners were already dropped. We have perused the record which reveals that the recommendation of the Prospectus Review Committee was placed before the State Government at highest level and the same was approved with sufficient and valid reasons. The matter dealt with by the Government on the basis of the report of the Prospectus Review Committee is reproduced hereunder:
"....... In the prospectus of 2017-18, wards of bonafide Himachalis who are living outside the State due to private employment or occupation are also exempted from the condition of schooling in the State.
As detailed at point no. 5 of N-43 this exemption was introduced in 2013-14. At that time Director Medical Education had opposed this exemption on the grounds that it would be difficult to verify bonafides of such candidates. However, the government introduced this exemption overruling DME.
It is very obvious that with this exemption, almost every bonafide Himachali is exempted from schooling in the State condition. This exemption effectively means that all bonafide Himachalis are eligible for admission making schooling condition infructuous.
In view of this it is proposed that exemption from schooling condition for persons in private employment and occupation is removed.
..................................
..................................::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 21
The Prospectus may kindly be approved as proposed by the Prospectus Committee with modification as per N-61. ....................................
Sd/-
.
ACS (Health) 8.6.2018.
H.M. Sd/-
H.M. 9.6.2018.
ACS (Health)- Out.
S.S. (Health) May issue letter for necessary changes in the Prospectus.
Sd/-
S.S. (Health) 11.6.2018.
S.O.(Health)"
14. As a matter of fact, the recommendation made by Prospectus Review Committee to drop the provisions qua providing exemption to the category of the petitioners was placed for decision before the Council of Ministers. After the decision taken at the highest level, the provisions were dropped from the Prospectus Annexure P-11. Subsequently, the words "private occupation" and Note 1 appeared in the Prospectus Annexure P-11 issued initially were also deleted by way of two Corrigendums Annexure P-
10 & P-12 on 13.6.2018 when online applications were being filled in as per the time schedule i.e. 12.6.2018 onwards till 20.6.2018. The candidates belonging to the category of the petitioners were, therefore, well aware about the deletion of clause 3(iv) providing them exemption from the condition of passing two examinations out of the four from the Prospectus for the academic session 2018-19. The petitioners, as such, are not justified in claiming that such decision of the respondent-State has left ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 22 them high and dry. As a matter of fact, the Prospectus was to be issued after declaration of the result of NEET (UG-2018) of course, before .
submission of online applications for admission. The Prospectus Annexure P-11 was issued on 12.6.2018 and the Corrigendums on the very next day i.e. 13.6.2018, hence, within time. The power of the respondent-State to amend or alter the Prospectus stood discussed in para 11 of the order dated 28.6.2018 reproduced supra. As a matter of fact, it is the note below item XXIV of the Prospectus (Annexure P-13) which empowers the respondent-State and for that matter the University also to make any change/amendment in the Prospectus even after issuance of the same, which shall be binding on all concerned, including the students.
15. In this view of the matter, no case in favour of the petitioners on this score is made out. The providing of benefit of exemption to the category of the petitioners is a policy decision taken by the competent authority. The power to lay a policy also includes to withdraw it. Hence, the doctrine of legitimate expectation is not at all attracted in this case.
While arriving at such conclusion, support can be drawn from the judgment of the Apex Court in Bajaj Hindustan Ltd. Sir Shadi Lal Enterprises Ltd. & anr., (2011) 1 SCC 640. The relevant text of the same reads as follows:
"41. The power to lay policy by executive decisions or by legislation includes power to withdraw the same unless it is by mala fide exercise of power, or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The court ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 23 leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is settled law that the court gives a large leeway to the executive and the legislature. Granting .
licences for import or export is an executive or legislative policy. The Government would take diverse factors for formulating the policy in the overall larger interest of the economy of the country. When the Government is satisfied that change in the policy was necessary in the public interest it would be entitled to revise the policy and lay down a new policy."
16. There is nothing on record that such a decision is the result of malafide exercise of power and rather the same was required to be taken in the interest of the State. The points (supra) arising for determination are now being discussed as follows:
Points No. 1 to 3.
17. All the points being interlinked and inter connected have been taken up together for discussion and decision. On behalf of the petitioners, an effort has been made to persuade this Court to form an opinion that the category of the petitioners and other exempted category 3(ii) being one and the same forms a group, hence denial of the benefit of exemption to their category is not based upon intelligible differentia and rather amount to creation of a class within the class which is neither legally permissible nor is there any relation between such classification and the object sought to be achieved. In order to buttress the arguments so addressed, reliance has been placed on the judgment of Larger Bench of the Apex Court in Budhan Chaudhary & ors. Vs. State of Bihar, AIR 1955 SC 191. The relevant text of the same reads as follows:
::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 24"5. The provisions of article 14 of the Constitution have come up for discussion before this Court in a number of cases., namely, Chiranjit Lal Chowdhuri v. The Union of India(1), The State of Bombay v. F. N. Balsara(2), The State of West Bengal v. Anwar Ali Sarkar(3), Kathi Raning .
Rawat v. The State of Saurashtra, AIR 1952 SC 123 (D); Lachmandas Kewalram Ahuja v. The State of Bombay, AIR 1952 SC 235, and Qasim Razvi v. The State of Hyderabad, AIR 1953 SC 156 and Habeeb Mohamad v. The State of Hyderabad, AIR 1953 SC 287. It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well-established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure. The contention now put forward as to the invalidity of the trial of the appellants has, therefore to be tested in the light of the principles so laid down in the decisions of this Court."
18. The Larger Bench of the Apex Court in Smt. Menaka Gandhi vs. Union of India, 1978 SC 597, has also held as follows:
"56. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach._ No attempt should be made to truncate its all embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned Within traditional and doctrinaire limits. We must reiterate here what was pointed out by the majority in E. P. Royappa v. State of Tamil Nadu & Another (1) namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes, at arbi- trariness in State action and ensures ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 25 fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of .
reasonableness in order to be in conformity with Article 14. It must be "'right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. How far natural justice is air essential element of procedure established by law."
19. The Apex Court has again held in National Council for Teacher Education and others vs. Shri Shyam Shiksha Prashikshan Sansthan and ors., (2011) 3 SCC 238 as follows:
"22. Article 14 forbids class legislation but permits reasonable classification provided that it is founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and the differentia has a rational nexus to the object sought to be achieved by the legislation in question. In re the Special Courts Bill, 1978 (1979) 1 SCC 380, Chandrachud, C.J., speaking for majority of the Court adverted to large number of judicial precedents involving interpretation of Article 14 and culled out several propositions including the following:
"(2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
(3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 26 discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. (5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of .
legislation and in relation to a law enacted on a particular subject.
This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.
(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be rational, that r is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act."
20. Similar is the ratio of the judgment, again that of the Apex Court, in S. Seshachalam and ors. Vs. Chairman, Bar Council of T.N. & ors., (2014) 16 SCC 72, which reads as under:
"21. Article 14 of the Constitution of India states that "The State shall not deny to any person equality before the law of the equal protection of the laws within the territory of India". Article 14 forbids class-legislation but it does not forbid reasonable classification. The classification however must not be "arbitrary, artificial or evasive" but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation. Article 14 applies where equals are treated differently without any reasonable basis. But where equals and unequals are treated differently, Article 14 does not apply. Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons all of ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 27 whom stand in the same relation to the privilege granted and between those on whom the privilege is conferred whom and the persons not so favoured, no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.
.
22. While Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects, and transactions by the legislature for the purpose of achieving specific ends. But classification must not be "arbitrary, artificial or evasive". It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation. Classification to be reasonable must fulfil the following two conditions:- Firstly, the classification must be founded on the intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group. Secondly, the differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the object of the Act. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory."
21. A Constitution Bench of the Apex Court in Union of India & ors. Vs. N. Rathnam & sons, (2015) 10 SCC 681, has again ruled as follows:
"13. It is, thus, beyond any pale of doubt that the justiciability of particular Notification can be tested on the touchstone of Article 14 of the Constitution. Article 14, which is treated as basic feature of the Constitution, ensures equality before the law or equal protection of laws. Equal protection means the right to equal treatment in similar circumstances, both in the priviliges conferred and in the liabilities imposed. Therefore, if the two persons or two sets of persons are similarly situated/placed, they have to be treated equally. At the same time, the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position. It would mean that the State has the power to classify persons for legitimate purposes. The legislature is competent to exercise its discretion and make classification. Thus, every classification is in some degree likely to produce some inequality but mere production of inequality is not enough.Article 14 would be treated as violated only when equal protection is denied even when the two persons belong to same class/category. Therefore, the person challenging the act of the State as violative of Article 14 has to show that there is no reasonable basis for the differentiation between the two classes created by the State. Article 14 prohibits class legislation and not reasonable classification.::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 28
14. What follows from the above is that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out .
of the group and (ii) that, that differential must have a rational relation to the object sought to be achieved by the statute in question. If the government fails to support its action of classification on the touchstone of the principle whether the classification is reasonable having an intelligible differentia and a rational basis germane to the purpose, the classification has to be held as arbitrary and discriminatory. In Sube Singh v. State of Haryana[5], this aspect is highlighted by the Court in the following manner:
"10. In the counter and the note of submission filed on behalf of the appellants it is averred, inter alia, that the Land Acquisition Collector on considering the objections filed by the appellants had recommended to the State Government for exclusion of the properties of appellants 1 and 3 to 6 and the State Government had not accepted such recommendations only on the ground that the constructions made by the appellants were of 'B' or 'C' class and could not be easily amalgamated into the developed colony which was proposed to be r built. There is no averment in the pleadings of the respondents stating the basis of classification of structures as 'A' 'B' and 'C' class, nor is it stated how the amalgamation of all 'A' class structures was feasible and possible while those of 'B' and 'C' class structures was not possible. It is not the case of the State Government and also not argued before us that there is no policy decision of the Government for excluding the lands having structures thereon from acquisition under the Act. Indeed, as noted earlier, in these cases the State Government has accepted the request of some land owners for exclusion of their properties on this very ground. It remains to be seen whether the purported classification of existing structures into 'A', 'B' and 'C' class is a reasonable classification having an intelligible differential and a rational basis germane to the purpose. If the State Government fails to support its action on the touchstone of the above principle then this decision has to be held as arbitrary and discriminatory. It is relevant to note here that the acquisition of the lands is for the purpose of planned development of the area which includes both residential and commercial purposes. That being the purpose of acquisition it is difficult to accept the case of the State Government that certain types of structures which according to its own classification are of 'A' class can be allowed to remain while other structures situated in close vicinity and being used for same purposes (residential or commercial) should be demolished. At the cost of repetition, it may be stated here that no material was placed before us to show the basis of classification of the existing structures on the land proposed to be acquired. This assumes importance in view of the specific contention raised on behalf of the appellants that they have pucca structures with R.C. roofing, Mozaic flooring etc. No ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 29 attempt was also made from the side of the State Government to place any architectural plan of different types of structures proposed to be constructed on the land notified for acquisition in support of its contention that the structures which exist on the lands of the .
appellants could not be amalgamated into the plan."
22. It is thus seen from the legal principles settled in the judgments supra that Article 14 forbids class legislation but not reasonable classification. It is violated only if equal protection out of two persons belonging to same class/category is denied to one of them. Additionally, that Article 14 strikes at arbitrariness in the State action and ensure fairness and equality of treatment. Although, the legality and validity of the policy decision taken by the government would have been decided after hearing arguments in these matters on 26.6.2018 yet, it is the question of discriminatory treatment and arbitrariness in action by the respondent-
State raised by Mr. Sunil Mohan Goel, Advocate, during the course of arguments, it was not possible to do so without hearing the candidates belonging to the exempted category 3(ii) of item No. IV(A). This question was left open to be decided after associating them also as party respondents in the writ petitions. For the sake of convenience, it is deemed appropriate to refer to the following paras of our order dated 29.6.2018 passed in these writ petitions:
"13. In this view of the matter, though we may have finally decided the question qua admissibility of the relaxation to the category of the petitioners in the light of the arguments addressed and the case law cited at Bar, however, existence of clause 3(ii) under Item No. IV(A), which appears to have been introduced for the first time in the year 2012-13, providing exemption from the condition of passing two examinations out of four from the schools or colleges situated in the State of Himachal Pradesh to the children of serving/retired employees ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 30 of the Central Government/UT/Other State Governments and children of employees of the Autonomous Organizations/Semi- Government Bodies of Central Government/UT/Other State Governments, has engaged our attention and prima-facie this .
category is similar to that of the petitioners, therefore, to our mind allowing exemption to the students of this category may not amount to create a class within class itself, which perhaps is not legally permissible. As a matter of fact, children of such employees/workers and for that matter those who are in private occupation outside are better placed in the matter of their studies as compared to the students who are residing in the State and studying in the schools/colleges situated here for the reason that outside the State, there exist good coaching institutions and facilities of tuition available which, however, not available to the students of this State, particularly to those who hails from remote rural areas of this State.
14. The case pleaded before us on behalf of the petitioners that the persons allegedly similarly situated i.e. the children of serving/retired employees of the Central Government/UT/Other State Governments and children of employees of the Autonomous Organizations/Semi-
Government Bodies of Central Government/UT/Other State Governments, are still enjoying the benefit of exemption from the condition of passing two examinations from the schools situated in the State of Himachal Pradesh., prima-facie, carry force and as students of this category if in merits are likely to participate in the counselling for admission to the course scheduled to be held on and w.e.f. 29.6.2018, the point so raised in these writ petitions and agitated during the course of arguments also need adjudication because in case ultimately the category of Central Government/other State Government employees is not held entitled to the concession, they also cannot occupy the seats in our Medical/Dental colleges at the cost of the students of this State.
15. Our difficulty at this stage, however, is that neither the candidates belonging to this category are before us nor the State has yet controverted the point that allowing exemption to the children of this category is discriminatory to the petitioners raised in the these petitions by them, hence cannot be adjudicated at this stage authoritatively. Therefore, it is not deemed appropriate to dispose of these writ petitions at this stage and rather keep the same alive for being considered further on the question of justification of providing exemption vide clause 3(ii) under item No. IV(A) to the children of serving/retired employees of the Central Government/UT/Other State Governments and children of employees of the Autonomous Organizations/Semi-::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 31
Government Bodies of Central Government/UT/Other State Governments after taking on record the version of the respondents and also the impleadment of the candidates, if any, from this category, in merit and eligible to appear in the .
counselling.
16. Our anxiety, at this stage, however, is as to whether the petitioners should also be allowed to appear in the counselling, if otherwise eligible and in merit or not. When the eligible and qualified children, if any, belonging to the category of children of serving/retired employees of the Central Government/UT/Other State Governments and children of employees of the Autonomous Organizations/Semi- Government Bodies of Central Government/UT/Other State Governments, may appear in the counselling, allowing the petitioners also if otherwise in merit and qualified to appear in the counselling of course, without any right of claiming admission in the Course would serve the ends of justice. Being so, by way of purely as interim arrangement, we restrict the claim to appear in counseling in favour of the petitioners alone from their category and to allow only to those petitioners who have submitted their applications either online or in terms of the interim order passed in some of these writ petitions well within the time schedule i.e. during the period from 12.6.2018 to 20.6.2018 and otherwise is/are in merits which shall be provisional for all intents and purposes and will not create any right in their favour to get admitted in the Course. However, no candidates from the category of the petitioners and of exempted category under clause 3(ii) of item IV (A) i.e. serving/retired employees of the Central Govt./ UT/ other State Governments and children of employees of the autonomous organizations/Semi-Government bodies of Central Govt./UT/ other State Governments, shall be admitted to the course without the leave of the Court. The respondents/Counselling Committee are also directed to notify the pendency of these writ petitions along with the next date of hearing and to bring gist of this order to the notice of the candidates appearing in counseling from the category of the petitioners and also from that of the exempted category in terms of clause 3(ii) of item No. IV (A) to the prospectus."
23. It is seen that in the order ibid, prima-facie, the category of the petitioners was held to be similar to that of the exempted category 3(ii).
Such opinion was formed with sole idea to examine the rights of the ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 32 petitioners to appear in counseling vis-à-vis the right of the candidates of exempted category 3(ii) and nothing beyond it. It was further observed that .
in case candidates belonging to the exempted category 3(ii) were also ultimately not held entitled to such exemption, why they should be allowed to occupy the seats in the Medical/Dental Colleges at the cost of the eligible and qualified Himachali students. Therefore, while in terms of the exemption provided under clause 3(ii) of item IV (A), the qualified candidates of this category had to appear for counseling, the petitioners were also allowed to appear provisionally for counseling with a stipulation that the candidates of both categories shall not be admitted to the course except with the leave of the Court.
24. The exemption from the condition of passing two examinations out of the four from the schools situated within the State of Himachal Pradesh to the children of exempted category 3(ii) has been held legal and valid by this Court in Vikram Singh Negi vs. State of H.P. & ors., (2009) 2 Shim. LC 362. The relevant text of this judgment reads as follows:
"8. It is contended on behalf of the petitioner that the parents of such students, who were working with other States have left the State of H.P. of their own volition and they have attained better quality of education outside the State and therefore, they should not be given the benefit of such an exemption. We are unable to accept this contention. It is for the State to decide whether such an exemption should be given or not. It is for the State to decide whether reservation should be made and if so for what category of people. Reservation can never be claimed as a matter of right. Articles 15 and 16 of the Constitution of India are only enabling provisions which permit the State to make reservation. What is the extent of reservation to be made is something to be decided by the State. Supposing the State in its wisdom decides that the condition regarding passing of some examinations from Schools situated within ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 33 Himachal should be done away with and deletes the same from the prospectus. Can any person have a right to claim that the State must be compelled to retain this condition? The answer has to be an emphatic no. Article 14 which pervades through .
our Constitution provides equal opportunity to all. Articles 15 & 16 of the Constitution of India are exceptions to Article 14. They cannot override Article 14 itself. That is why the Apex Court has repeatedly held that the reservation normally can never exceed 50%. What is the extent and manner of reservation is something for the Executive to decide. The Court can only interfere if it is shown that powers have been exercised arbitrarily or in violation of the Constitution of India."
25. In view of such authoritative pronouncement, we need not to go into this aspect of the matter any further and hold without any hesitation that the exemption from the condition of passing two examinations to the category i.e. 3(ii) to the category of retired/serving Central Government employees/UT/ other State Governments and children of employees of the Autonomous Organizations/Semi-Government Bodies of State/Central Governments, is legal and valid as nothing has been brought to our notice that granting such concession to this category and withdrawing from the category of the petitioners is arbitrary and result of malafide exercise of power.
26. Now, if coming to further claim of the petitioners that their category is at par with the exempted category 3(ii) and that depriving them from such benefit amounts to creation of class within the class, hence violative of Article 14 of the Constitution of India. Though so was the prima facie opinion formed in the order dated 29.6.2018, however, the category of the petitioners is not at par with the exempted category 3(ii) for ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 34 the reason that the retired/serving Central Government employees/UT/ other State Governments and children of employees of the Autonomous .
Organizations/Semi-Government Bodies of State/Central Governments forms a separate and distinct class as compared to that of the petitioners.
They are outside the State on account of their appointment in the Central/other State Governments or Boards/Corporations owned and controlled by the Central/State Governments. At the most, the employees in the private sector can be said to have some resemblance with the employees under exempted category 3(ii), however, it is for the policy makers to take a decision in this regard. The decision now taken, however, is not open for judicial scrutiny because it is the policy makers who had included this category for the first time in the Prospectus in the year 2013- 14 and it is again the policy makers who in their wisdom have now dropped the same from the current academic session 2018-19.
27. As regards the persons in private occupation, they are not entitled to any exemption from the condition of passing two examinations from the schools situated in the State for the reason firstly that they can not be said to have left the State under any compulsion and secondly they could have started such occupation in the State of Himachal Pradesh itself.
If they have chosen to start such occupation/business outside the State, they did so out of their own volition and may be with a view to earn more which they may have not earned while carrying such occupation/business in the State. The possibility of such exemption being availed even by ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 35 multi-millionaires and those carrying business/occupation in abroad also can not be ruled out.
.
28. We are not oblivious to the fact that bona fide Himachlis in large number are residing outside in connection with doing small-small jobs and carrying petty business i.e. Taxi drivers, chaffs, cooks, riksha pullers etc. and also carrying business as Hawkers and "Rehri Phari wala"
but their children by and large reside at their native places in Himachal Pradesh itself and undergo their studies in the schools situated in the State of Himachal Pradesh. Therefore, the policy makers have rightly differentiated the category of the petitioners from that of the exempted category 3(ii). As a matter of fact, the two categories are distinct and separate and do not form same group. The differentia between the two as such is intelligible and there is relation between such classification and the object sought to be achieved i.e. to provide more avenues to Himachali students to seek admissions in MBBS/BDS courses in the colleges situated in the State. The prime object sought to be achieved thereby is to train doctors well verse with the geographical and climatic conditions prevailing in the State of Himachal Pradesh, particularly in the snow bound and remote areas to ensure better medical facilities to the people residing in such areas. The intention of the respondent-State, as such, does not suffer from malafide and bias and rather the power has been exercised in larger public interest.::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 36
29. The Apex Court in a recent judgment in Lok Prahari through ITS General Secretary vs. The State of Uttar Pradesh & ors., 2018 .
SCC Online SC491, has held as follows:
"30. In Budhan Choudhry (supra), the classical test based on a reasonable classification to give legitimacy to an act of differential treatment was expounded in the following terms:
"......It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely,
(i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that differentia must have a rational relation to the object sought to be achieved by r the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
30. We find the present a case where dropping the category of petitioners from Prospectus for the purpose of the exemption is on the basis of reasonable classification because the category of the petitioners and the exempted category 3(ii) are distinct and separate and there is rationale relationship between such classification and the object sought to be achieved by deletion of category 3(iv) and Note 1 appended below it. The classification is based upon various considerations like topography of the State, socio-economic condition of the people, scarcity of good schools, tutors and coaching centres for the children studying in the schools situated in the State and that the meritorious Himachali children gets a ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 37 chance of admission in the MBBS/BDS courses to serve the State. The paramount consideration, of course, is to provide better medical facilities to .
the people of the State, especially in snow bound and remote areas.
Therefore, there is a nexus between the basis of such classification and the object i.e. dropping the provisions in the Prospectus qua providing exemption to the category of the petitioners, sought to be achieved.
31. It is held by the Hon'ble Apex Court in Transport and Dock Workers Union & ors. Vs. Mumbai Port Trust & anr., (2011) 2 SCC 575, that differential treatment always does not amount to violation of Article 14 of the Constitution. It violates the same only when there is no reasonable basis for the differentiation. Since, as noticed supra, the exclusion of the category of the petitioners from exemption is based on intelligible differentia and there is a nexus between such exclusion and the object sought to be achieved, therefore, there is no question of violation of Article 14 of the Constitution of India in this case. Support in this regard can be drawn from the judgment of the Apex Court in Shayara Bano vs. Union of India & ors. & connected petitions, (2017) 9 SCC 1. The relevant text thereof reads as follows:
"101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 38 determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well .
under Article 14."
32. True it is that it is not possible to the State to provide employment to all, however, those who are residing outside the State in connection with their service in private sector or being in private occupation, must also know that their children can seek admission in the Medical/Dental colleges situated in the State only on having passed two examinations out of the four mentioned below clause 1 of item IV(A) of the Prospectus. Therefore, their children like the children of those who are permanently residing in the State can also pass two examinations from the schools situated in the State. They cannot be heard of any grievance nor that declining the exemption to their children is discriminatory or violative of Article 14 of the Constitution of India. Mr. Sunil Mohan Goel, Advocate, though has tried to draw support from the judgment of this Court in Vikram Singh Negi's case cited supra, however, unsuccessfully because observations in the judgment came to be made while examining the legality and validity of the exemption provided to the exempted category 3(ii). True it is that the Court at that time had no occasion to compare the rights of the petitioners to seek exemption vis-à-vis the right of the exempted category 3(ii), however, for the reasons recorded hereinabove and also to be recorded hereinafter, we find no similarity in the category of the petitioners with exempted category 3(ii). We agree with further submission made by Mr. Sunil Mohan Goel, that the eligibility criteria i.e. requirement of ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 39 passing two examinations out of four from the Schools situated in the State of Himachal Pradesh held legal and valid by this Court in Gagan Deep's .
case (supra) should have been applied in letter and spirit. The eligibility criteria should have been applied as it is, however, the policy makers have exempted most probably subsequently some of the categories mentioned in clauses 2, 3 (i) to 3(iii) of main item IV (A). Such benefit was available to the category of the petitioners also in the recent past, however, as discussed hereinabove, the same now stands withdrawn from the current academic session 2018-19. We leave it open to the policy makers to re-
consider the desirability of continuing such concession to these categories in future for the reason that when the persons falling under these categories claim themselves to be Himachalis having roots in the society can conveniently make their children to study in the schools situated in their respective areas or elsewhere in the State of Himachal Pradesh, if interested in seeking admission in the Medical/Dental Colleges situate in the State. Their children having not studied from the schools situated in the State amply demonstrate that they have been proclaiming themselves to be a Himachali merely to avail such concession.
33. The another argument that the Prospectus once published could have not been unilaterally changed to the detriment of the petitioners is again without any substance for the reasons we have already recorded in para 11 of the order dated 29.6.2018, reproduced supra. No doubt the provisions in the Prospectus have the force of law as it is held so by this Court in Gunjan Kapoor vs. State of Himachal Pradesh & ors. 1999(1) ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 40 Sim. L.C. 246. However, when the Prospectus itself reserves a right in favour of the respondents to make any change/amendment, the same shall .
be binding on the students. It is held so by a Division Bench of Delhi High Court in Varun Kumar Agarwal vs. Union of India & ors. LPA No. 599 of 2010, decided on 3.3.2011. The relevant text of the same reads as follows:
"16. We have referred to the aforesaid decisions only to highlight that the conditions stipulated in the prospectus are guidelines for all concerned and everyone is required to follow the same in letter and spirit and not act in transgression. The hopes and aspirations of the students, who came within the zone of merit, cannot be scuttled by changing the prospectus by way of introducing a corrigendum. A change in the conditions of the prospectus can be conceived of and allowed if such power is specifically reserved while making the prospectus public as in that case, no one can think of having a right. In that event, the same could be capable of change."
34. The judgment of the Apex Court in Deepak Sibal vs. Punjab University & anr., (1989) 2 SCC 145, relied upon by the learned counsel for the petitioners is distinguishable on facts because in that case the admission to law courses in evening College of Punjab University was denied to the employees of private/public establishments/ institutions on the ground of production of bogus certificates by them, imparting legal education to employees of government/semi-government institutions in public interest, continuity of service for 3 years period of State and elimination of wastage of seats. Such, however, is not the position in the case in hand nor the withdrawal of concession to the category of the ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 41 petitioners suffers from any illegality or arbitrariness. The ratio of the judgment, as such, is of no help to the case of the petitioners.
.
35. For all the reasons hereinabove, this writ petition (CWP No. 1353 of 2018) and its connected writ petitions CWP Nos. 1347, 1354, 1355, 1374, 1375, 1384, 1393, 1413, 1416, 1504 to 1508, 1517 and 1524 of 2018 are dismissed and the interim order(s) vacated. However, CWP No. 1501 of 2018 is allowed. Consequently, the petitioner in Civil Writ Petition No. 1501 of 2018 and respondents No. 4 to 7 in main matter i.e. CWP No. 1353 of 2018 are held entitled to the exemption from the condition of passing two examinations out of four and consequently admission from their category i.e. 3(ii) of item IV (A), if otherwise qualified and in merits against 85% State quota seats.
36 Before parting, irrespective of withholding the benefit of exemption to the category of the petitioners in these writ petitions, except petitioners in CWP No. 1501 of 2018, has been held legal and valid, we leave it open to the respondent-State to consider granting admission only to those petitioners who have approached this Court by filing Civil Writ Petitions well before the pronouncement of order therein on 29.6.2018 for the reason that in the said order, the right of counseling has been restricted only to them as per para 16 of the order, reproduced in this judgment (supra) against the vacant seats, if any available in the Medical/Dental Colleges situated in the State. We make it clear that the admission, if any, granted by the respondents against the remaining vacant ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 42 seat(s) after the counseling as per the eligibility criteria prescribed in the Prospectus Annexure P-13 is over, shall be as a special case and to be not .
treated as precedent in future.
37. All the Writ Petitions stand accordingly disposed of, so also the pending application(s), if any.
Sd/-
( Dharam Chand Chaudhary ), Judge.
Sd/-
July 13, 2018, ( Vivek Singh Thakur ),
(karan-) Judge.
Per Vivek Singh Thakur, Judge.
38. I have the privilege of going through the elaborate judgment of my esteemed brother, Chaudhary, J. addressing contentions of parties in detail. With due regard and utmost respect I agree with him but with difference of opinion on conclusion arrived at on one point, as discussed hereinafter.
39. Facts and issues involved in these petitions, already discussed in judgment delivered by learned brother, are not necessary to be repeated unless necessity and relevance is there to recount the same.
40. By now, it is settled position that merit based admission is a rule for admission to MBBS/BDS courses in Medical/Dental Colleges, as has been held in Dr. Pradeep Jain and others versus Union of India and others, reported in (1984) 3 Supreme Court Cases 654, and repeatedly reiterated in subsequent judgments by observing that object of any valid scheme to Medical/Dental Colleges must be to select the best candidates ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 43 for being admitted to these colleges. However, in Pradeep Jain's case (supra) itself, mainly on the basis of 'State interest' and 'Region's claim of .
backwardness', States, in the scheme of admission to the Medical/Dental Colleges, were permitted to depart from the principle of selection based on merit. Considering the 'State interest' in serving the residents of the State by providing much needed medical aid to the people and in improving the public health generally and also in bringing about real equality of opportunity between those who are unequals, the reservation based on residence, for bonafide residents of the State, was permitted on the assumption that those, who are bonafide residents of the State, would, after becoming doctors, settle down in the State and serve the need of people for the State and thus, attempt of the State to impart medical education to the best talent available out of a class of persons, who will likely, so far as it can reasonably be foreseen, be available to serve the inhabitants of the State as doctors, was held to be justified and, therefore, reservation on the basis of classification to serve the object and the purpose of providing broad-based medical aid to the people of the State and to provide medical education to those, who are best suited to such education, was permitted.
41. In Pradeep Jain's case (supra), recognizing the 'State interest', it is further held that Government, which bears the financial burden of running the Government Colleges, is entitled to lay down criteria for admission to is own colleges and to decide the source from which admission would be made, provided, of course, such classification is not ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 44 arbitrary and has rational basis and reasonable connection with the object of the rules and classification of candidates on the basis of passing out of .
examination from particular institution(s) was also held to be justified by observing that such rules cannot justly be attacked on the grounds of hostile discrimination or as being otherwise in breach of Article 14 of the Constitution of India.
42. Another reason for departure from principle of admission on merit, as discussed in Pradeep Jain's case (supra), i.e. region's claim of backwardness, is not relevant in present case as there is no reservation provided to a particular region of the State on the basis of backwardness and also it is a fact that the entire State of Himachal Pradesh cannot be termed as a backward region for the reason that there are numerous schools affiliated to the H.P. Board of School Education as well as CBSE and ICSE etc., which are known for excellence not only in the State, but, in the country also and are having repute not less than any other school in the country and students of those schools have been considered at par with students of schools of rural and far flung remote areas of the State.
43. In Pradeep Jain's case (supra), 70% reservation for State quota was permitted, however, the same was permitted up to 85% by the Apex Court in Dr. Dinesh Kumar and others versus Motilal Nehru Medical College, Allahabad and others reported in (1986) 3 Supreme Court Cases 727.
44. In aforesaid circumstances, as considered in detail in Pradeep Jain's case (supra), reservation for bonafide Himachalis with condition of ::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 45 passing certain exams from the schools situated in the State of Himachal Pradesh, incorporated in the prospectus, has been continuing for .
admission to the Medical/Dental Colleges in the State of Himachal Pradesh.
45. Constitutionality and legality of the similar condition in the State of Haryana was also upheld by the Apex Court in Anant Madaan versus State of Haryana and others, reported in (1995) 2 Supreme Court Cases 135. Thereafter in 1996, similar condition in the State of Himachal Pradesh has also been held to be legal and valid by this High Court in Gagan Deep's case (supra).
46. Issue of exemption, from aforesaid condition of passing exams, came up for consideration before the Apex Court in case titled as Meenakshi Malik versus University of Delhi and others, reported in (1989) 3 Supreme Court Cases 112, wherein father of the candidate was posted by the Government outside India resulting into shifting of the family, including children, to abroad. It was considered by the Apex Court to be a hard case as the family was compelled to go outside the State on account of posting of father of the candidate and on account of this compulsion, there was not a real choice of child to study outside the State and hence, rigours of condition of passing of examinations from the State concerned were exempted.
47. In Anant Madaan's case (supra), prerogative of the State to choose the source for admission was reiterated. At that time, eligibility, as prescribed in the prospectus for State of Haryana, was as under:
::: Downloaded on - 16/07/2018 23:02:18 :::HCHP 46"(i) The candidates who have studied 10th, 10+1 and 10+ classes as regular candidates in recognised institutions in Haryana...
.
(ii) The children/wards ... of the employees appointed on regular basis of Haryana State Government/Members of All-India Services borne on Haryana cadre/statutory bodies/corporations established by or under an Act of the State of Haryana whether posted in Haryana or outside...
(iii) The children/wards ... of the employees of Indian Defence Services/Paramilitary Forces belonging to Haryana State at the time of entry into service as per their service records...."
In a connected Civil Appeal in the said case, preferred by one Nandita Kalra, whose father was serving in Department of Science & Technology in Delhi and mother was a Professor and, thus, she had not passed required examinations from Haryana, as prescribed for admission to Medical Colleges in Haryana, but from Delhi, for her living with the family; rejection of her claim by the Punjab and Haryana High Court was upheld by the Apex Court for the reason that no such exemption was available and further that her parents had taken employment voluntarily outside the State of Haryana.
48. In Nandita Kalra's case, ( in Anant Madaan's case supra) referring judgment of the Apex Court in Deepak Sibal's case, it was canvassed that there was no valid base for making distinction between the employees exempted in the prospectus and employees in private service outside the State of Haryana. But, the said contention was not answered by the Apex Court on the ground that since this issue had not been either discussed or decided by any of three Judges of Punjab and Haryana High ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 47 Court, whose judgment was before it, with observation that the Apex Court was not called upon to examine this question.
.
49. In Gagan Deep's case (supra) also, in absence of exemption clause in prospectus no exemption to the condition of passing examinations from the State of Himachal Pradesh was permitted and even claim of a student, who had passed his examinations from a Navodaya School situated outside the State of Himachal Pradesh on account of his shifting in pursuance to State sponsored Exchange Scheme, was also rejected.
50. In case Nishant Puri versus State of H.P. and others, reported in (1999) 1 Supreme Court Cases 126, there was no exemption to employees of Departments/Boards/Corporations/other institutions, owned and controlled by the State of Himachal Pradesh as apparent from prescribed eligibility for admission quoted in the said judgment, which was as under:
"Eligibility -
"(i) Candidates who have to compete for admission to Indira Gandhi Medical College, Shimla (MBBS), Dr. Rajendra Prasad Govt. Medical College Kangra, Himachal Pradesh Government Dental College and Hospital Shimla (BDS), OR Free seats available in various Private Dental Colleges and Medical Colleges situated in Himachal Pradesh and Rajiv Gandhi Government Ayurvedic College, Paprola should have passed at least two of the following examinations from the recognised Schools or Colleges affiliated to ICSE/CBSE and HP Board of School Education or equivalent Boards/University established by law in India.
(a) Middle or Equivalent.
(b) Matric or Equivalent.::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 48
(c) 10+2 or Equivalent.
(ii) The bona fide Himachali students who are admitted to Navodaya Schools situated in Himachal Pradesh and who .
pass Matric or + 2 examination under the exchange programme from other Navodaya Schools in the Country shall also be eligible for admission to the above courses.
(iii) The wards of Defence personnels/ serving Central Government employees who are bona fide Himachalis are also exempted from the condition of passing two classes from the State of Himachal Pradesh."
As there was no exemption to wards of State Government employees, the Apex Court, considering aforesaid eligibility condition, had rejected the claim of the candidate for exemption, whose mother, an employee of State of Himachal Pradesh, was posted at Chandigarh (outside the State of Himachal Pradesh) on her request on medical grounds. His claim was rejected on the ground that despite posting of his mother at Chandigarh, she was not a Central Government employee, but, was a State Government employee having lien with the State of Himachal Pradesh and also that she went on deputation of her own volition and not out of compulsion or exigencies of service.
51. Entitlement of the State to lay down interia has been reiterated in Vikram Singh Negi's case (supra), holding that the respondent-State was competent and empowered to include or exclude any category for grant of reservation of 85% State quota and also to include or exclude any category from the exempted class, but with observation that such power cannot be exercised arbitrarily, irrationally and unconstitutionally.
::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 4952. Verdict of Gagan Deep's case (supra) lead for providing an exemption clause to the condition of passing out exams from the schools of .
the State to candidates on the basis of principle, as recognized by the Apex Court in Meenakshi Malik's case (supra), that child living and passing out examination from outside the State out of compulsion should be exempted from such condition and as such, an exemption for students, children of bonafide Himachalis, studying in Navodaya Schools situated outside Himachal Pradesh under the Exchange Scheme, appears to have been introduced.
53. Similarly, later on, another exemption to the children of employees serving in defence services/Central Government employees, who are bonafide Himachalis, has also been introduced.
54. After Nishant Puri's case aforesaid exemption appears to have been extended to the children of the serving/retired employees of Himachal Pradesh Government/HP Government Undertaking/autonomous bodies, wholly owned by HP Government, whose parents are living outside State of Himachal Pradesh on account of their service.
55. Later on, aforesaid exemption was further extended to children of serving/retired employees of central Government/UT/other State Governments and children of employees of the autonomous organizations/Semi Government Bodies of Central Government/UT/other State Governments. Validity of the said exemption was upheld by this High Court in Vikram Singh Negi's case (supra).
::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 5056. In the year 2013-14, the same exemption was extended to candidates, who are children of bonafide Himachalis and whose .
father/mother are living outside Himachal Pradesh on account of their private occupation, deletion whereof in the prospectus for the year 2018- 2019 is under consideration in present petitions.
57. The Apex Court in Deepak Sibal versus Punjab University and another, reported in (1989) 2 Supreme Court Cases 145, has held that Article 14 forbids class legislation, but, does not forbid reasonable classification and whether a classification is a permissible classification under Article 14 or not, two conditions must be satisfied, namely: (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that the differentia must have a rational nexus to the object sought to be achieved by the statute in question. It has also been held that in order to consider the question as to the reasonableness of the classification, it is necessary to take into account the objective for such classification and if the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable. Further, that the surrounding circumstances may be taken into consideration in support of the constitutionality of a law which is otherwise hostile or discriminatory in nature, but, the circumstances must be such as to justify the discriminatory treatment or the classification sub-serving the object sought to be achieved. A classification by the identification of a source must not be arbitrary, but should be on a reasonable basis having a nexus with the ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 51 object sought to be achieved by the rules for such admission. A classification need not be made with mathematical precision but, if there be .
little or no difference between the person or things which have been grouped together and those left out of the group, the classification cannot be said to be a reasonable one. The Apex Court in case titled as S. Seshachalam's case, as quoted by learned brother, has reiterated the aforesaid settled exposition of law.
58. I am in agreement with my respected brother that not all persons belonging to category private occupation but, out of them, only persons serving in private sector have resemblance with employees of exempted category Item IVA Clause 3 (ii) and rest persons with private occupation are not comparable with this exempted category. I would like to add that for reasons detailed hereinafter employees of Govt/Public Sector under exempted clause 3(ii) and employees in private sector under deleted clause 3(iv) constitute a single class for the purpose of adjudicating issue in present case. All observations made hereinafter referring private sector would be referring only employees of private sector under deleted clause (iv) but none else.
59. In Deepak Sibal's case (supra), it has been held by the Apex Court that the classification of the employees as Government employee and private employee was impermissible under law for the purpose of deciding eligibility for admission to the evening classes. Similarly, in the present cases, children of Government employees are being extended the benefit of ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 52 exemption whereas children of private employees are prevented from such benefit.
.
60. In Vikram Singh Negi's case (supra) also, Division Bench of this Court has taken the judicial notice of the fact that all educated persons belonging to Himachal Pradesh cannot get government employment in the State and due to this reason, some of them have to perforce take up jobs outside the State of Himachal Pradesh and, therefore, it was considered by the Court that there was no reason as to why the children of these persons, who have taken up jobs outside the State of Himachal Pradesh, but, are bonafide residents of Himachal Pradesh, should be denied admission to the Medical Colleges within the State of Himachal Pradesh as roots of these people are in Himachal Pradesh.
61. Main factors for providing exemption under Item IV (A) Clause 3 (ii) and for upholding the same in Vikram Singh Negi's case (supra) in favour of children of bonafide Himachalis serving in departments/ autonomous bodies, wholly or partially controlled by the Government other than State of Himachal Pradesh, amongst others are as under:
State of Himachal Pradesh cannot provide job to all.
Bonafide Himachalis have to go outside Himachal Pradesh due to compulsion.
Children of such persons have to study out of Himachal Pradesh for living with their parents, which is beyond their control.::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 53
All these factors amongst others applicable to Government/ Public Sector are also applicable to Bonafide Himachalis serving/working outside State of .
Himachal Pradesh in Private Sector.
62. In present cases, parents of both the categories, i.e. serving in Government/Public Sector and Private Sector, are similarly situated and are falling in the same class of persons, who are compelled to serve outside the State for want of provisions/opportunities of job in the State of Himachal Pradesh, but, are bonafide Himachalis having roots in the State of Himachal Pradesh and falls in one and the same category in whose favour Division Bench of this Court in Vikram Singh Negi's case (supra) has upheld the exemption. Therefore, to treat parents serving in Government sector and in private/ unorganized sector a separate class, is not based on intelligible differentia for the purpose of adjudication of issue in question in present petitions.
63. In the past, in the era of nationalization, everything was proposed and supposed to be controlled by the State or its undertakings and at that time, maximum opportunities of job were available in the Government/Public Sector. Now, in the era of disinvestment in the Government Sector and age of privatization, the opportunities of jobs in Government/Public Sector have tremendously decreased and vast scope of job opportunities in Private Sector has risen. Even, the Governments are appealing to the unemployed youth to explore and avail opportunities of jobs in private sector. Like State of Himachal Pradesh, which cannot provide jobs to all, Government/Public Sectors of other States and Central ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 54 Government can also not provide jobs to all, and the opportunities of job in the Government/Public Sectors are becoming bleak day by day.
.
64. Further, there are numerous fields in which even no opportunity of job is available in Himachal Pradesh and in those fields, outside the State of Himachal Pradesh also, there is limited opportunity in Government/Public Sector, but, vast opportunities are available in Private Sector. Instead of enumerating all, it would be suffice to quote examples of Civil Aviation and Merchant Navy. In Civil Aviation, Air India is the only Public Undertaking whereas there are numerous other air shipping companies in private sector. Not only this, recently, Air India has also been proposed to be sold in open market to a Private Sector.
65. As discussed hereinabove, bonafide Himachalis serving, either in Public Sector or in Private Sector, cannot be said to have opted jobs outside the State of Himachal Pradesh of their own volition. They are living outside the State due to compulsion and it is a basic human instinct, who is serving either in Public Sector or in Private Sector, to have desire to come to his native place, to his roots, to his society. The said instinct may not have the same force in persons who are in established business as there is no age of retirement in other private occupations like service sector.
Therefore, persons serving in Private Sector are equivalent to persons serving in Government/Public Sector, but, not persons of other private occupations, like business etc. ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 55
66. Reasons, as canvassed by respondent-State for ouster of Private Sector of bonafide Himachalis living outside the State of Himachal .
Pradesh, amongst others are as follows:
To provide level playing field to candidates studied in Himachal Pradesh.
They are serving outside for their own choice.
Candidates in this category are benefited by better facilities/educational institutions/ coaching opportunities available outside Himachal Pradesh.
All these factors amongst others applicable to private sector are applicable to children whose parents are serving in Government/Public Sector other than State of Himachal Pradesh outside Himachal Pradesh.
67. It appears that whether it is the inclusion or the exclusion of category of children whose parents having private occupation outside the State of Himachal Pradesh, it has been made on stray and casual observations without considering the facts in its entirety. There is no data or study available on record placed before the Court whereby decision of inclusion/ exclusion of this category was decided. At the time of inclusion of this category, the reason given was that Government had decided to amend the prospectus to the effect that State quota seats of MBBS/BDS courses be made accessible to all bonafide Himachalis, who possesses Himachali Bonafide Certificate, but, residing outside the State of Himachal Pradesh on account of some private business or working in private companies and not just for Government employees working outside the ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 56 State. The only objection of Director (Medical Education) was that it would be difficult to verify the bonafides of such candidates, but, the said .
objection was overruled at that time. Now, this exemption has been deleted only on the ground that this exemption effectively means that all bonafide Himachalis are eligible for admission, making schooling condition infructuous but not for dissimilarty with category exempted under clause
(ii) where inclusion was made by equating them with the said category. It was never objected on the ground that they are not similarly situated to the category exempted under clause (ii). There is complete non-application of mind at the time of taking decision(s) for inclusion or exclusion of category of private occupation in wholesale without realizing and considering that, in present case, employees in Government/Public Sector and Private Sector are on the same footing and an inseparable class for the purpose of considering eligibility of these candidates for admission. In my opinion, as held in Deepak Sibal's case (supra), such classification differentiating Government/Public Sector and Private Sector for purpose of admission in present case is not permissible.
68. Objection of Director Medical Education, at the time of providing exemption to the children of parents having private occupation outside the State of Himachal Pradesh first time in 2013-2014 against this exemption, that it would be difficult to verify bonafide of such candidates, is not a valid ground to oppose such exemption to employees of private sector for the reason that not only in the State of Himachal Pradesh, but, there is constitutional machinery existing in every State having various ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 57 authorities to verify the facts. Condition to produce certificate of a competent authority, as deemed fit by the Government, may be introduced .
and in addition thereto, the condition like verification from the concerned Panchayat/local self body, duly countersigned by the Executive Magistrate or any other competent authority of the native place, may also be introduced. It can be noticed that even, as of now, in every certificate filled in and certified by competent authority on prescribed format in Appendix with prospectus to be submitted before admission, it has been mentioned that doubtful certificate will be got verified through the intelligence sources and if found wrong, will render the student liable to expulsion and suitable legal action. Therefore, difficulty in verifying the bona fide of any candidate is no ground for his ouster.
69. At the time of deciding exclusion of the aforesaid category, it has been observed that this exemption effectively means that all bonafide Himachalis are eligible for admission making the schooling condition infructuous. The said observation is also without any substance as there was no material before the Prospectus Review Committee nor any such material has been placed before the court. Further, the children of this category, who are similarly situated to the children of the exempted category under Item IV (A) Clause 3 (ii) cannot be discriminated only on this count. The provisions of passing out two examinations is not for debarring bonafide Himachalis from admission to the Medical/Dental Colleges situated in the State of Himachal Pradesh, but, to allow all children of bonafide Himachalis, who genuinely deserve it and, therefore ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 58 only, exemption has been provided to allow all such children of bonafide Himachalis, who, by compulsion, are not able to study in Himachal .
Pradesh. This exemption is to be provided or denied to all similarly situated persons in the same manner.
70. Based on the plea of respondent-State that candidates studying outside the State of Himachal Pradesh are marring the opportunities of candidates studying in Himachal Pradesh, it can be inferred that exemption being provided to the children of parents serving outside the State of Himachal Pradesh either in Government/Public sector other than State of Himachal Pradesh or in private/unorganized sector is bad and is adversely affecting the nexus to be achieved by imposing the condition of passing of two examinations from Himachal Pradesh, State vide order, dated 29th June, 2018, was directed to place on record year-wise details of students admitted under State quota belonging to these categories during academic sessions 2012-2013 to 2017-2018. The same has been placed on record, in an affidavit filed by Special Secretary (Health) to the Government of Himachal Pradesh, which transpires that during these years, candidates exempted under deleted Clause 3 (iv) in Item IV (A) had occupied that children of Item IV (A) Clause 3 (ii) and deleted clause (iv) had occupying seats almost in equal proportion. In such a situation both categories are to be treated equally in either manner.
71. Reservation/Exemption is not a bounty to be disbursed at whims of the State to the persons of choice by adopting pick and choose method. In the era of East India Company and during regime of Britishers, ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 59 there was policy of State to bestow status upon its employees by enlarging special benefits to them so as to encourage tendency in Indians to join their .
services. But, now we are living in a Democratic State governed by the Constitution. Therefore, discrimination to the children of employees in private sector by giving preferential treatment to Government/Public Sector, in a case like present one, is not only unwarranted but impermissible.
72. Reason for extending preferential treatment to Government Sector/Public Sector i.e. principle of living outside State out of compulsion, is also applicable with same magnitude to the Private Sector. Therefore, while agreeing with my learned brother, that Private Sector is similarly situated to Public Sector, but, not every private occupation, I would like to add further that deletion of category of children of parents living outside State on account of private occupation in all fields, other than serving in Private Sector, may not be discriminatory, but, deletion of category of children, whose parents are serving in Private Sector outside the State, is definitely violative of Article 14 of the Constitution of India.
73. I agree that everyone in private sector/business/occupation is not well established and this category includes labourers, workmen in industrial areas, rickshaw puller, auto/taxi/private transport vehicle drivers etc., having lower rank of occupation for whom even basic needs are also beyond reach whereas persons having higher placement in their career are capable of providing all facilities to their children which are not available in Himachal Pradesh, particularly, in remote areas. Similarly, ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 60 Government/Public Sector other than State of Himachal Pradesh also includes persons having occupation of lower rank like Peon, Clerk etc. and .
also persons holding higher posts, who are capable of providing all facilities to their children which are not available in Himachal Pradesh, particularly, in remote areas. But, respondent-State has failed to consider this aspect at the time of providing/denying exemption to the category of candidates, whose parents are living outside Himachal Pradesh, either in Government/Public Sector or in Private Sector and has treated equals and unequals in the same manner either for granting exemption or for excluding from exemption. It again reflects non-application of mind by concerned authority/committee.
74. Purpose of providing opportunity to the socially and educationally backward candidates of Himachal Pradesh is also defeated when the children of parents of all categories of exempted class are considered eligible for admission to Medical/Dental Colleges in Himachal Pradesh irrespective of their posting and status as the persons serving as Class-I employees in various departments/ Boards/organizations are having capacity to afford better facilities for their children available outside the State of Himachal Pradesh either at their place of posting or somewhere else, but, the children of such parents are also considered at par with others resulting into equal treatment of unequals. In case, State intends to continue such exemptions, a bar of maximum income can be imposed so as to prevent unequals to be treated equal amongst those who are not having ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 61 sufficient means to avail the facilities available outside the State of Himachal Pradesh, even after living there.
.
75. It is contended on behalf of the State of Himachal Pradesh that exemption regarding children of bonafide Himachalis in private employment/occupation outside the State was introduced in the year 2013-14 for the first time and now, this exemption has been withdrawn from this academic session primarily for the reason that it is not giving a level playing field to the students who have done their schooling from the State of Himachal Pradesh as this exemption was providing opportunity to students to compete with socially/educationally backward Himachali students despite the fact that the students have studied outside the State on account of their parents being engaged in private occupation outside the State by their choice whereas children of people living in the State are being debarred from 85% quota if they choose to study outside the State.
However action of State is to the contary. There was condition for proof of schooling at place of residence of parents for children of parents in private occupation outside State of Himachal Pradesh, but, no such condition to other exempted categories renders plea of compulsion, for living outside State with parents at the place of their posting, a farce for other exempted categories. All such candidates have been exempted without taking care of the fact that they have studied in the schools of their choice outside the State of Himachal Pradesh. For example; A child of parents of exempted categories under Clauses 3 (ii) or 3 (iii) opts for schooling at Chandigarh despite posting of his father at Pathankot, then his case, in no manner, is ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 62 different than any other bonafide Himachali living in the State with children studying outside Himachal in the school of choice. There is no .
difference between a child sent outside Himachal by parents living in Himachal and a child by parents living outside Himachal sent for studies in schools of choice situated at place other than of their posting in Government/ Public Sector. Thus, preferential treatment being given to children of exempted categories under Clauses (ii) and/or (iii) becomes discriminatory.
76. Plea of respondent-State, that the elimination of aforesaid category is for providing level playing field to the children of Himachal Pradesh, is also negated by their own act of providing exemption to children falling under the category of Item IV (A) Clause 3 (ii) as children belonging to the said category are also having all better facilities/ educational institutions/coaching opportunities available outside Himachal Pradesh, which are not available to a normal student studying in Himachal Pradesh and parents of these children are similarly situated to those parents, who are serving in Private Sector outside the State of Himachal Pradesh as no one wants to leave his home in case opportunities to earn livelihood are available there. It is by compulsion to earn for survival which drives a person outside his native place and, more particularly, from the State.
77. Plea of the State, as submitted by the learned Advocate General that exemption clause has been provided in the prospectus for benefit of those children who have to live with their parents outside the State of Himachal Pradesh on account of compulsion for the reason that their ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 63 parents are serving Government/Semi-Government/ autonomous bodies, owned and controlled by the Government as the State of Himachal Pradesh .
cannot provide job to all persons and, therefore, this category of children is required to be exempted from rigours of rule providing passing of two exams in the State of Himachal Pradesh and children of such categories are not to be penalized; also applies to children of parents serving outside State in Private Sector, as discussed hereinbefore.
78. Plea of the State that the students of Himachal Pradesh were not getting medical education outside the State and when the question of admission to Medical College in the State arose, the students of other States' Universities and Schools managed to get admission in the Medical College in Himachal Pradesh, thereby preventing the students of Himachal Pradesh from pursuing MBBS/BDS courses, again becomes redundant when exemption is granted to those students, who are studying at their places of choice irrespective of place of posting of their parents outside the State of Himachal Pradesh. Moreover, this plea may be relevant for reservation on the basis of schooling in Himachal Pradesh, which is not in dispute in present case. But, this plea has no relevance to present lis, rather, it runs contrary to the exemption granted to categories 3 (ii) and 3
(iii).
79. Issue of ouster of children, whose parents are living outside on account of their employment in Private Sector, but, providing exemption to similarly situated children whose parents are in Government/Public Sector other than State of Himachal Pradesh was not under consideration either ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 64 in Gagan Deep's or in Vikram Singh Negi's cases (supra). This issue has crystallized for the first time.
.
80. Inclusion of one category in exempted category does not create indefinite and indefeasible right to remain included for ever. The said category can be excluded by Government for valid reasons even if its inclusion would have been upheld by the Court. As factors for inclusion and exclusion of children of bonafide Himachalis parents living outside on account of working in Private Sector are equally applicable to the children of bonafide Himachali parents serving in Government/Public Sector other than State of Himachal Pradesh, the state is expected to treat both of them equally.
81. Parents working in private sector are being differentiated on the basis of the plea that it would help to provide level playing field to the candidates belonging to Himachal Pradesh. But, here also, children of parents serving in Government sector and private/organized sector are on same footings. In case, there is possibility of usurping seats by the children of parents serving in Private Sector outside the State of Himachal Pradesh, for the same reasons, children of parents serving in Government Sector/Public Sector outside the State of Himachal Pradesh will also usurp the seats at the cost of students studied in Himachal Pradesh as children of both the categories have equal and same opportunity and facilities outside the State of Himachal Pradesh, which may not be available to the students of Himachal Pradesh.
::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 6582. Therefore, in my opinion, either the children belonging to both the categories are to be allowed exemption or none of them is entitled for .
the same. Thus, in my opinion, irrespective of the fact that the State has power to do so, as discussed hereinabove, the action of the State is violative of Article 14 of the Constitution of India and deserves to be interfered with.
83. Plea of the State, that petitioners have no vested right to seek exemption as such policy decision is absolutely in domain of the State and cannot be claimed as a matter of right, is not permissible in present case.
Had claim of the petitioners, except in CWP No. 1501 of 2018, been for inclusion of their category for exemption for the first time, the same may not have been maintainable for powers of the State to choose and decide the category for which exemption is to be provided but for the reason that the said category was existing under exempted categories and similarly situated persons are still exempted, the petitions are maintainable to assail exclusion of the petitioners from exempted category.
84. It has been submitted on behalf of the petitioners except in CWP No. 1501 of 2018 that process of NEET had started in the month of January-February, 2018 and at that time, there was an option for candidates to opt for the State and for the reason that their category was eligible for the last more than five years, they had opted for the State of Himachal Pradesh, but, as held vide order, dated 29th June, 2018, the deletion of category of petitioners cannot be held to be invalid or illegal on this ground.
::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 6685. I am in agreement that it is the domain of the State to consider as to which category should be included or excluded in the exemption class .
and also that the respondent has a right to make out corrections in the prospectus after issuance of the same, but, with the rider that such correction should only be remedial measure to remove inherent mistakes, ambiguity, to give harmonious construction to the provisions of the prospectus or to remove practical difficulty in the provisions of the prospectus, but, not to change/replace the criterion itself changing the basic conditions. In the present case, the corrections have been made to remove the ambiguity only as, before publication of prospectus, it was decided to withdraw the exemption to the children of parents having private occupation living outside the State of Himachal Pradesh and the said decision was also given effect in prospectus in its first publication. There was no exemption available to the children of said category in the prospectus in absence of clause (iv) and, therefore, to implement the decision of exclusion of their category, the respondent-State, including the University, was well within its rights to rectify its ministerial mistakes.
Therefore, corrigenda (Annexure P-11 and P-13) issued by respondent-State to correct ministerial mistake are permissible.
86. In aforesaid circumstances, in order, dated 29th June, 2018, it has been observed that category of petitioners, except CWP No.1501 of 2018, was not existing on the date of publication of prospectus, but, in view of contention raised, it was considered that permitting similarly situated children of parents serving outside the State of Himachal Pradesh ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 67 in Government/Public Sector of other than State of H.P.would amount discrimination in violation of Article 14 of the Constitution of India and it .
was opined that children of parents serving in Government/Public Sector and children of parents serving in Private Sector outside the State of Himachal Pradesh belong to the same class and to differentiate them may amount to create a class within a class.
87. I am also in agreement that harsh policy decisions are also permitted to be taken in larger interest of the public, and that legitimate expectation is no ground for striking down the action of the respondent-
State in present case, but, at the same time, it is expected that State should be sensitive in dealing with matters where such a sudden hammer stroke of withdrawing of such exemption existing since four-five years may not only have adverse impact on the career of children, but, also have great psychological impact upon them, as in such cases, the respondent-State is dealing with young children, who are at the threshold of their career and life and are not well acquainted with legal technicalities. Therefore, any such deletion should be decided well in advance so as to enable the children to visualize and elect options available to them in their career. It is not a question of being right technically, but, it is also moral duty of the respondent-State to deal with such issues with great care and sensitivity.
Therefore, for future, respondent-State should evolve a mechanism so as to finalize, the eligibility criteria for admission in the Medical/Dental Colleges in the State of Himachal Pradesh well in advance after due deliberations and publish such decision giving wide publicity even before issuance of the ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 68 prospectus. It should also be kept in mind that in case of matters like present in nature, the respondent-State is dealing with children and any .
policy decision adversely affecting any category of candidates must be taken into consideration well in advance so as providing opportunity of the candidates to opt for other option available to them. It is not a case where the State has to exercise its discretion to grant something, but, it is a case where certain exemption, as available to a particular category since 2013- 14, has been decided to be withdrawn.
88. Being a policy matter, it is also domain of the State to take a decision with regard to categories to whom exemption is to be provided or not, but, at the same time, such decision should not be violative of Article 14 of the Constitution of India and for the reason that the Public Sector and Private Sector cannot be discriminated. As discussed hereinabove, in my opinion, deletion of children of parents serving in Private Sector, but not of Government/Public Sector, is definitely violative of Article 14 of the Constitution of India. But, deletion of the children of the parents, who are living outside the State of Himachal Pradesh on account of other private occupation like business etc. is not violative of Article 14 of the Constitution of India.
89. As discussed above, exemption clause 3(iv) was not in the prospectus on the very first day, and thus candidates of this category were well aware about the said deletion. But only a few candidates have approached this Court who vide order dated 29.6.2018 were permitted to participate in counseling. Now only those candidates of the category can ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 69 be considered for admission to the Medical/BDS College who have participated in the counseling. Candidates of exemption clause 3(ii) are .
otherwise entitled for admission. Therefore, Petitioners belonging to category of exempted under clause 3(ii) and children of parents serving outside Himachal Pradesh in private sector as well as respondents No. 4 to 7 in CWP No. 1353 of 2018 are entitled to claim right for admission against 85% State quota.
90. I am in agreement with desirability of reconsideration of continuing of concessions as proposed by my learned brother in the light of observation made. I would like to add further that children of persons serving in Defence Forces/Paramilitary Forces, requires reconsideration to achieve the object behind reservation for bonafide Himachalis having passed two examinations from schools of Himachal Pradesh as the persons belonging to these forces are a separate and distinct class having no comparison with any other class, especially keeping in view the arduous nature of their service and duty, but children of employees of State Government and Undertakings/Institutions controlled by State/Central Government may be subjected to furnish certificate of schooling from a school at a place of posting of their parents outside the State of Himachal Pradesh unless such facility is not available at that place also.
91. As discussed above, State has power to lay down criteria for admission to is own colleges and to decide the source from which admission would be made, but, such classification should not be arbitrary and must have rational basis and reasonable nexus with purpose and ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 70 object to be achieved; prospectus has statutory force and basic conditions contained therein cannot be changed but .
correction/amendment to remove inherent mistakes, ambiguity, to give harmonious construction to the provisions of the prospectus or to remove practical difficulty in the provisions of the prospectus are permissible, particularly when specific mention of power to amend/correct is there in prospectus itself; exemption to conditions of passing two examinations from the schools situated in the State of Himachal Pradesh prescribed in Item IV (A) Clause 3 must not be defeating the purpose and object for which this condition has been prescribed by State and permitted by the Apex Court and upheld by this High Court; Item IV (A) Clause 3 (iv) was not existing in the Prospectus 2018-2019 at the time of its publication and, thus, corrigenda, dated 13th June, 2018 (Annexures P-10 and P-12) are permissible for carrying out correction of ministerial mistakes;
candidates of category under Item IV (A) Clause 3 (ii) are entitled for admission to the Medical/Dental Colleges of the State of Himachal Pradesh as per prospectus of current session and State may re-consider desirability of continuing exemption under Item IV (A) Clause 3 to these categories, in the light of observations made in this judgment.
92. I am in agreement with my esteemed brother except partial difference with respect to conclusion that deletion of Clause 3(iv) in Item IV-A is not violative of Article 14 of the Constitution of India. In my opinion, though, all persons comprised in private occupation under clause (iv) are not similarly situated to Clause 3(ii) category but employees serving in ::: Downloaded on - 16/07/2018 23:02:19 :::HCHP 71 Private Sector outside Himachal Pradesh can be equated with employees serving outside Himachal Pradesh in Government/ Public Sector of other .
than State of Himachal Pradesh and thus wholesale deletion of category of children whose parent(s) are living outside Himachal Pradesh on account of their private occupation is violative of Article 14 of the Constitution of India qua children whose parents are serving in private sector and is liable to strike down to that extent and consequently, candidates of deleted category of Item IV (A) Clause 3 (iv) who are children of parents serving outside Himachal Pradesh in private sector, participated in counseling are also entitled for admission to the Medical/Dental Colleges of the State during this session.
( Dharam Chand Chaudhary ), Judge.
July 13, 2018, ( Vivek Singh Thakur ),
(sunil/karan-) Judge.
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