Punjab-Haryana High Court
Hari Singh Nalwa Trust (Regd.) And ... vs State Of Haryana And Another on 4 December, 2014
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.23829 of 2014
Date of decision: 04.12.2014
Hari Singh Nalwa Trust (Regd.), Village Ujha, P.O. Risalu, Tehsil
Bapoli, District Panipat (Haryana), through Shri Vinay Nalwa,
Director, Nalwa College of Education, Ujha, Panipat (Haryana), and
others.
... Petitioners
versus
State of Haryana, through its Principal Secretary, Education
Department, Haryana, New Haryana Civil Secretariat, Sector 17,
Chandigarh, and another.
.... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. R.K. Malik, Senior Advocate,
with Mr. Mandeep Singh, Advocate,
for the petitioners.
Mr. Roopak Bansal, Additional Advocate General,
Haryana.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ?Yes.
----
K.Kannan, J. (Oral)
1. The petitioners-Colleges have joined together to complain against the policy brought out by the Government restricting admission to students aspiring to join D.Ed. course only to persons, who had domicile in Haryana and that which did not provide for transfer of unfilled seats belonging to reserved category SANJEEV KUMAR 2014.12.05 14:24 I attest to the accuracy and integrity of this document Civil Writ Petition No.23829 of 2014 -2- to general category. Admissions were for the Session 2014-15 and admittedly, from the first counselling, which took place on 15.06.2014 to 8th counselling which had been done in November 2014 and still more than 750 vacancies under reserved categories exist. The petitioners have, therefore, approached this court with principally two prayers: (i) to quash the eligible condition prescribed in the prospectus to the extent that only bona fide residents of Haryana State are eligible for admission; (ii) that there shall be transfer of unfilled seats in reserved category to general category.
2. The State would join issues on the petitioners' plea by contending that the restriction of admission only to persons domiciled in Haryana is to ensure that the general candidates belonging to Haryana will not be deprived of doing the D.Ed. course completely, if the admissions were to be granted for candidates outside Haryana as well. The further contention is that the transfer of unfilled seats in reserved category to general category was not being done in the light of policy of the State Government for reservation.
3. The contention that if the candidates outside Haryana are brought within the State, the general candidates will have difficulty in securing admission, is falsified by the respondent's own admission that all the vacancies were not filled up in spite of 8th counselling which was completed after nearly 4 months after the SANJEEV KUMAR 2014.12.05 14:24 I attest to the accuracy and integrity of this document Civil Writ Petition No.23829 of 2014 -3- first counselling was started in June. It is not merely an issue of exigency. It is parochial and has no place in the scheme of the constitution. Article 15 of the Constitution of India reads thus:-
"15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) ..........
(3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority SANJEEV KUMAR 2014.12.05 14:24 I attest to the accuracy and integrity of this document Civil Writ Petition No.23829 of 2014 -4- educational institutions referred to in clause (1) of article
30."
4. While there could be some special considerations for women and children, or provisions for support of some regional groups within the State, where they are economically and socially backward, a wholesale exclusion of candidates from persons outside the State is constitutionally bad. The reason given in the reply of the State does not truly address the challenge brought by the petitioners on constitutional standpoint. This issue has come up before Supreme Court which considering institutional preference to students pursuing higher education in the same college/University, where domicile was taken as relevant. Residence based education, the Supreme Court held in Dr.Pradeep Jain and others Versus Union of India and others-AIR 1984 SC 1420, was invalid. Even institutional preference on such a consideration could not be more than 50%. A higher weightage for residence was however approved in Sanjay Ahlawat Versus Maharishi Dayanand University, Rohtak and others-1995 AIR SCW 228, but even that decision did not contemplate a 100% reservation to persons domiciled in Haryana only. Again, Sanjay Ahlawat (supra) explained the raisond'etre for the policy that there was shortage of doctors in Haryana and hence, additional marks for Haryana residents were favoured. In this case, the reason spelt out for exclusion of non- SANJEEV KUMAR 2014.12.05 14:24 I attest to the accuracy and integrity of this document Civil Writ Petition No.23829 of 2014 -5- residents of Haryana has no rational basis or data-backed information to justify it. I cannot, therefore, find the eligibility criterion restricted only to Haryana as tenable.
5. Even the decision not to fill up the seats from the reserved category which are not filled up does not appear to be fair. Issues of policy are normally left with the State to decide and if there is a policy taken that the reserved category shall not be transferred, then if a challenge is brought, there needs to be an answer as to why such a transfer shall not be possible or how it will affect the composition of the educational environment in the institutions. The answer cannot be merely that the policy does not allow the same. The reply begs the question of what it has to answer and does not address the true concern of the institutions to allow seats to be left vacant when they have sufficient infrastructure to handle them. Afterall the students' strength of every college is assessed on the availability of infrastructure and if there are additional number of students, who could be admitted with the available infrastructure, it makes little sense to completely block any entry from the seats meant for reserved category, if they are not filled up for the benefit of general candidates. I will not state that the policy itself restricting a transfer to be bad but at least in this situation where there is an admitted position that 750 reserved seats are still lying vacant, it makes no sense to support such a situation. SANJEEV KUMAR 2014.12.05 14:24 I attest to the accuracy and integrity of this document Civil Writ Petition No.23829 of 2014 -6-
6. Under the circumstances, I hold that the restriction of admission of all the candidates only from the bona fide residents of Haryana to be constitutionally bad. Since the admissions have gone already, I will not require the whole advertisement to be issued afresh and undertake the admissions afresh. This shall only operate in future, but as far as these petitioners are concerned, they will have the relief of securing from the State a right of consideration for transfer of seats, if they are not filled up in the reserved category to the general category from the residents of all the States even outside Haryana.
7. The learned senior counsel appearing on behalf of the petitioners states that they will absorb the expenses for publication for filling up the seats within a week by newspaper advertisement and carry out admissions within the time set by the court. I would accept the proposal as meaningful and direct that the State causes an advertisement to be issued at the cost of the petitioners for admission to D.Ed. Course for the Session 2014-15 before 12.12.2014 and carry out admissions for the seats which are still vacant firstly, for the reserved category within the State and if the seats are not filled up on the 1st day, to allow for admission to all the candidates under general category without reference to restriction regarding domicile or place of birth. The admissions shall be completed within a period of one week and the State may adopt SANJEEV KUMAR 2014.12.05 14:24 I attest to the accuracy and integrity of this document Civil Writ Petition No.23829 of 2014 -7- usual procedure of a common admission and allocation of candidates to various colleges in the order of merit.
8. The writ petition is disposed of as above.
9. Order copy be issued dasti to the parties under the signature of the Bench Secretary.
(K.KANNAN) JUDGE 04.12.2014 sanjeev SANJEEV KUMAR 2014.12.05 14:24 I attest to the accuracy and integrity of this document