Punjab-Haryana High Court
Jasmine Kaur vs Chandigarh Administration And Others on 13 January, 2014
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA-2051-2013
Date of decision:-13.01.2014
Jasmine Kaur
...Appellant
Versus
Chandigarh Administration and others
...Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr. Chetan Mittal, Senior Advocate,
with Mr. Puneet Gupta, Advocate,
for the appellant.
Mr. Sanjay Kaushal, Senior Standing Counsel,
for Union Territory, Chandigarh - respondents No. 1 and 2.
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SANJAY KISHAN KAUL, C.J. (ORAL)
Admit.
Learned Senior Standing Counsel for the Union Territory, Chandigarh/respondents No. 1 and 2 accepts notice.
On request of learned counsels for the parties, the appeal is taken up for final disposal.
The appellant before us laid a challenge to the validity of the definition of 'Non Resident Indian' to the extent it required the parents/grand-parents of such a person to own immovable property in his/her name in Chandigarh for the last at least five years. The appellant claims that she is a Canadian citizen and her grand-father had retired as an Under Secretary in the year 1994 and he resided in a government Sharma Amodhhouse from 1965 to 1984 and again shifted to another government 2014.01.14 17:15 I attest to the accuracy and integrity of this document chandigarh LPA-2051-2013 2 accommodation provided by the Chandigarh Administration from 1984 to 1994. The third set of government accommodation is pertaining to an allotment made to the father of the appellant which he continued to occupy till December, 2003, whereafter her father started living in the house of her grand-father in Mohali. The appellant passed as a regular student from Mohali.
The learned Single Judge found in favour of the appellant and struck down the impugned clause as impracticable, illegal, illogical and, thus, the appellant succeeded. The order has not been assailed by the respondent authorities.
The reason for filing of the present appeal arises on account of the fact that despite the appellant having succeeded on the question of law, she has been denied the benefit of succeeding in the petition on the ground that she had already got admission in a BDS Course in Dr. Harvansh Singh Judge Institute of Dental Science, Sector 25, Chandigarh and that she had not laid a challenge to the eligibility criteria before submitting the application form. The hiatus period from the issuance of the prospectus to the submission of the application by the appellant, whereafter challenge was laid, has been held to be fatal for the purposes of relief to the appellant.
We are unable to accept the reasoning of the learned Single Judge on this account. No doubt the prospectus was made available earlier, but the appellant approached this Court immediately when the application was sought not to be entertained on account of the offending clause. The delay cannot be said to be fatal as to deprive the Sharma Amodh 2014.01.14 17:15 I attest to the accuracy and integrity of this document chandigarh LPA-2051-2013 3 appellant of the relief. This is moreso for the reason that it is not as if the appellant is not pursuing a medical course, but is already qualified for the BDS Course. This is an aspect which should go in favour of the appellant rather than against the appellant as we are informed that the initial period of the Course of six months is identical. Thus, there is no lack of education to the appellant qua the MBBS Course which the appellant seeks to join.
We are, however, faced with a quandary that respondent No. 3 is stated not to have taken admission elsewhere. Thus, if respondent No. 3 is displaced, it would amount to making her lose a year for no fault of hers.
In order to do substantial justice to the appellant without putting respondent No. 3 at a disadvantage, in the peculiar facts of the present case, we feel that the appellant should be entitled to the admission in the MBBS Course without displacing respondent No. 3 even if this requires creation of an additional seat. We direct accordingly.
The appeal is allowed to the aforesaid extent leaving the parties to bear their own costs.
(SANJAY KISHAN KAUL) CHIEF JUSTICE (ARUN PALLI) JUDGE 13.01.2014 Amodh Sharma Amodh 2014.01.14 17:15 I attest to the accuracy and integrity of this document chandigarh