Madras High Court
H.U.Prasanth vs The Government Of Tamil Nadu on 11 July, 2007
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/07/2007 CORAM: THE HONOURABLE MR. JUSTICE K.CHANDRU WRIT PETITION (MD) No.5851 of 2007 and M.P.(MD) No.1 of 2007 H.U.Prasanth, rep. by father and guardian, K.S.Harikumar .. Petitioner vs. 1.The Government of Tamil Nadu, represented by its Secretary, Department of Medical Education, Fort St.George, Chennai - 600 009. 2.The Selection Committee, Directorate of Medical Education, Government of Tamil Nadu, No.162, Periyar E.V.R.High Road, Kilpauk, Chennai - 600010 represented by its Secretary. 3.The Director of Medical Education, Government of Tamil Nadu, Kilpauk, Chennai - 600010 .. Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to consider the petitioner with Application Number, A.R.Number and Random Number for general category for the admission as 00180, 1751 and 1561114192, respectively and application number and A.R.number for Special Category for the same as 0010 and 50013 respectively in the Special Category of seats reserved for children of freedom fighters for admission to M.B.B.S Course 2007-2008 session, as stated in clause 14(i) at page No.12 of M.B.B.S/B.D.S admissions prospectus 2007-2008 published by the 2nd respondent. !For petitioner : Mr. K.N.Thampi ^ :ORDER
The short question that arises for consideration in this Writ Petition is whether the grand children of a freedom fighter is eligible to compete in the quota fixed in the special categories reserved for freedom fighters' children in the selection to be made for the M.B.B.S. Course in terms of the prospectus for the year 2007-2008.
2. The various special categories are given in the prospectus. In page 20, serial No.14 the first category relating to freedom fighters is as follows:
14. SPECIAL CATEGORIES SEATS RESERVED FOR SPECIAL CATEGORIES IN GOVERNMENT COLLEGES:
Seats earmarked for the special categories will be allotted following the Horizontal Reservation.
(i) SEATS RESERVED FOR CHILDREN OF FREEDOM FIGHTERS NO. OF SEATS RESERVED IN M.B.B.S Adopted/Foster son/daughter are not eligible to seek admission under this category.
The candidates while applying under the Special Category mentioned above should furnish the following copies of documents along with the application.
a. Assistance Certificates/Freedom Fighter Pension Orders issued by the Central/State Government to the freedom fighter (or) Jail Extract duly recommended by the District Committee for the Freedom Fighters.
b. Particulars of the Freedom Fighter in the book containing Freedom Fighters name published by Government of Tamil Nadu.
c. Proof that the candidate is the child of Freedom Fighter.
d. Tahsildar Certificate to establish the relationship with Freedom Fighter.
e. Birth Certificate to ascertain to ascertain the parentage of the candidate.
f. Legal heir certificate of the Freedom Fighter.
3. The petitioner, minor H.U.Prasanth is the son of one K.S.Harikumar, a legal practitioner and who is the son of late M.Krishnan Thampi. Late M.Krishnan Thampi is established by the fact that his widow is also drawing freedom fighter's pension from the State Government. On the sole ground that the petitioner is the grand son of M.Krishnan Thampi, the present Writ Petition is filed for a direction to consider the case of the petitioner(minor H.U.Prasanth) in the special category of seats reserved for the children of freedom fighters in terms of para 14 referred to above.
4. Mr.K.N.Thampi, learned counsel for the petitioner submitted that the word "children" in para 14 (i) will include not only sons and daughters but also the grand children. In support of his contention, the learned counsel relied upon certain dictionary meanings for the purpose of establishing that the word "children" will include descendants.
5. To indulge in a semantic luxury, it is enough to extract the meaning given in any one of the dictionary for this purpose. As per Concise Oxford English Dictionary-
"child - n (pl.children) 1 a young human being below the age of full physical development - a son or daughter of any age. 2 derogatory an immature or irresponsible person. 3 (children) archaic the descendants of a family or people.
-PRHASES child's play a task which is easily accomplished with child archaic pregnant.
-DERIVATIVES childhood n. Childless adj.childlessness"
6. He also submitted that if such a construction is not made by the Court that the very idea of giving a quota for freedom fighters' children will become redundant because if calculated from the year 1947 when India got independence, there will not be any children of freedom fighters' children available under this quota. If that is factually true, then it will not be the intention of the Government to prescribe a quota without there being any eligible person to apply under the same. Therefore, in order to give full meaning to the word "children" in the said para, it should be read to include grand children of the freedom fighters also.
7. Learned counsel also relied on the judgment of the Supreme Court in D.N.Chanchala v. The State of Mysore and others etc., (AIR 1971 SUPREME COURT 1762) in support of his contention that the reservation for the freedom fighters can be traceable to Article 15(4). In the said judgment, it was held that reservation for the children of Defence Personnel is valid as it is in national interest. If the same analogy is applied then it was not unreasonable to extend that principle to the children of sufferers who in consequence of their participation in the emancipation struggle became unsettled in some cases economically ruined and were therefore, not in a position to make available to their children with the class of education which would place them in fair competition with the children of those who did not suffer from that disadvantage.
8. At present, the Court is not concerned with the source of power in which the 3 seats were served for children of the freedom fighters. In fact, a Larger Bench of this Court vide its judgment reported in 2002 Writ L.R.898 (M.Aarthi (minor) rep. by her mother and natural guardian Mrs. M.Renuka v. The State of Tamil Nadu and others) had an occasion to go into the special categories reserved in professional colleges and expressed that such a reservation are only horizontal and that while making reservations the State should bear in mind. In para 19, the Larger Bench observed as follows:
"19. ... Reservations of several kinds like widows, deserted women and any candidate, whose parent has suffered for the cause of development of Tamil and contributed towards the protection etc., are quite untenable. They do not have any constitutional or legal sanction. But we are not dwelling on that as they have not been questioned here and as the admissions to that category have already been completed. Other than the reservation in Tamil Nadu Act 45 of 1994, what is permissible is only for Physically Handicapped, Eminent Sportsmen, children of freedom fighters and Children of Ex-servicemen being horizontal reservation and not vertical. The State has to bear this in mind in future."
9. For the purpose of interpreting the word "Children" found in para 14, it will be dangerous to rely upon a dictionary meaning. The various dictionaries themselves give several meanings for the said word and therefore, it depends upon the context in which the said word is used. In fact, in The Law Lexicon by P.Ramanatha Aiyer, 2nd Edition 2004 published by Wadhwa, Nagpur, the word "Children" is also defined as follows:-
"CHILDREN AS MEANING GRANDCHILDREN. "The words 'Child or Children' primarily mean, issue in the first generation only-Sons and Daughters-to the exclusion of grandchildren or other remoter descendants"(per Ld.BLACKBURN, Bowen v. Lewis, 54 LJQB 68). In Butler v. Ralston, 69 Ga 485, 489, it is said: "In the ordinary and proper sense of the word "Children" it means the immediate descendants of a person, as contradistinguished from issue but in its legal signification, as applied to testamentary instruments (unless the manifest intention requires a different construction) it is extended to all the descendants, whether mediate or immediate of the ancestor." (See S.99 Suc.Act 1925). if there be no child, grandchildren may take under a bequest to "children" (Crooke v. Brookeing, 2 Vern.108.) But "Grandchildren" are rarely called "Children" (Matter of Chaoton, 104 Mich. 11, 12) "Children" might mean "grand children where there could be no other construction, but not otherwise (Ame Cyc.) Child, in the Poor Relief Act, 43 Eliz. C.2, S.7 does not include grandchild. Maund v. Mason (1874), LR QB
254."
10. In fact, that is the same position even in our country,when we look at the Indian Succession Act. The principle followed in U.K. has been codified under Section 109 which is as follows:
"109. When bequest to testator's child or lineal descendant does not lapse on his death in testator's lifetime- Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will."
Therefore, any definition must be contextual. It is not as if the present issue is arising out of any estate being left behind intestate by a freedom fighter.
11. If the argument of the petitioner is accepted, wherever the word "Children" is found, then the meaning found in the dictionary will include the descendants, which will lead to absurd results.
12. The Supreme Court had an occasion to consider the provisions under Section 175 of the Haryana Panchayati Raj Act 1994 vide its decision in Javed and others vs. State of Haryana and others reported in (2003) 8 Supreme Court Cases 369. The Section dealt with by the Apex Court is as follows:-
"175.(1) No person shall be a Sarpanch, Up-Sarpanch or a Panch of a Gram Panchayat or a member of a Panchayat Samiti or Zila Parishad or continue as such who-
* * *
(q) has more than two living children:
provided that a person having more than two children on or up to the expiry of one year of the commencement of this Act, shall not be deemed to be disqualified."
13. If the interpretation as suggested by the learned counsel is to be accepted, the word "children" in the context of disqualification while contesting in the Panchayat Election will be that a person who had one son and two grand sons, will be disqualified for contesting an election because the grand children will also be the children in view of the said interpretation. Even in that case, the arguments were advanced that if a person has three children, in order to contest in the election, if one child is given in adoption, whether the disqualification will still apply to that candidate was also considered. The following passage found in paragraph 62 in the decision cited supra is relevant:
Para 62. It was submitted that the enactment has created serious problems in the rural population as couples desirous of contesting an election but having living children more than two are feeling compelled to give them in adoption. Subject to what has already been stated hereinabove, we may add that disqualification is attracted no sooner a third child is born and is living after two living children. Merely because the couple has parted with one child by giving the child away in adoption, the disqualification does not come to an end. While interpreting the scope of disqualification we shall have to keep in view the evil sought to be cured and purpose sought to be achieved by the enactment. If the person sought to be disqualified is responsible for or has given birth to children more than two who are living then merely because one or more of them are given in adoption the disqualification is not wiped out." [Emphasis added]
14. The word "children" given in Para 14 (i), if it applies to grand children and there is no reason why it should not apply to great grand children and so on and so forth. As suggested by the learned counsel for the petitioner, the calculation of descendants should not start from the year 1947 when we got our freedom from the colonial power. As of now, we are celebrating 150th year of the First War of Indian Independence (otherwise known as "Sepoy Mutiny"). When that event is taken as the basis, then there will be descendants from those who had participated in that mutiny and they will be even 8th or 9th generations of those martyrs will be available today to claim quota.
15. It was never the intention of the State Government to provide quota for the descendants to be given the concession for all time to come. Since the intention of the Government is to compensate the freedom fighters who have shed their lives for getting our independence, the Government is always compensating them not only by granting pension for the freedom fighters but also for their family members, in case if a freedom fighter is no more. Even in the present case, the petitioner's grand mother is getting freedom fighter's pension from the State Government as stated in the affidavit.
16. The quota for the special categories have to be construed in a strict manner as it is an exception to Article 15. As found by the Full Bench judgment of this Court, it can only be horizontal reservation and not a vertical reservation. Even the prospectus under para 14 (1) states that adopted/foster sons/daughters are not eligible to seek admission in this category. If the intention of the State Government is to exclude the adopted and foster sons/daughters, then it is to see that this quota is not misused by unscrupulous elements as had happened in the past where even a 90 year old freedom fighter adopted a prospective applicant for the medical course as his son. Therefore, by no stretch of imagination, the grand children of the freedom fighters can never get into the quota in the special category found in para 14(1) of the medical college.
17. The argument that para 14 (i) will become an empty formality if the purposive interpretation given by the petitioner is not accepted it must be stated that no seats will become vacant. Because under the present system, admissions to special categories are filled up first and if any seats, which are meant for the special categories are unutilised, the same will be transferred to the general counselling for the candidates not coming under the special categories.
18. Ultimately, if the State Government finds that nobody will apply under this category, it is for the State Government to remove the said para 14 from the prospectus for future years rather than allowing it to be obtained by the so-called descendants of the freedom fighters, who want to encash the sacrifice of their great fathers and great grand fathers. Today, there is mushrooming of bogus claims for the freedom fighters' pension and it has come to a stage where the Supreme Court has made a stinking remark over such bogus claims.
19. In the decision of the Supreme Court in Mukund Lal Bhandari v. Union of India [1993 Supp (3) SCC 2], the following passage found in para No.9 is as follows:-
"The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of its, since they consider it as an affront to the sense of patriotism with which they plunged in the freedom struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. (Emphasis added)
20. Further, in Mukund Lal and Gurdial Sing cases (4 (2005) 7 SCC 605), the Supreme Court has held that genuine freedom fighters deserve to be treated with reverence, respect and honour. But at the same time, it cannot be lost sight of that people who had no role to play in the freedom struggle should not be permitted to benefit from the liberal approach required to be adopted in the case of the freedom fighters, most of whom in the normal course are septuagenarians and octogenarians." (Emphasis added)
21. Following above two judgments, the Supreme Court in Union of India v. Avtar Singh [(2006) 6 Supreme Court Cases 493] has held that High Court in Writ Petition under Article 226 was not justified in directing the authorities to grant freedom fighter's pension to all though liberal approach is warranted, false claims should not be permitted on that basis.
22. In the light of the same, the claim made by the petitioner is fanciful and not based upon any constitutional grounds. Hence, the Writ Petition fails and the same is dismissed. No costs. The connected Miscellaneous Petition is also dismissed.
asvm To
1.The Secretary, The Government of Tamil Nadu, Department of Medical Education, Fort St.George, Chennai - 600 009.
2.The Secretary.
The Selection Committee, Directorate of Medical Education, Government of Tamil Nadu, No.162, Periyar E.V.R.High Road, Kilpauk, Chennai - 600010
3.The Director of Medical Education, Government of Tamil Nadu, Kilpauk, Chennai - 600010.