Punjab-Haryana High Court
Aditi Dhiman vs Baba Farid University Of Health ... on 12 September, 2013
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CWP No.17832 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CWP No.17832 of 2013 (O&M)
Date of Decision: 12.09.2013
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Aditi Dhiman
. . . .Petitioner
Versus
Baba Farid University of Health Sciences, Faridkot and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Vivek K. Thakur, Advocate,
for the petitioner.
Mr.Anupam Gupta, Sr. Advocate, with
Mr.Ashish Rawal, Advocate,
for respondent Nos.1.
Mr.S.S. Brar, Advocate,
for respondent No.2.
Mr.Ramneek Vasudeva, Advocate,
for respondent No.3.
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RAKESH KUMAR JAIN, J.
The petitioner has prayed for a direction to respondent No.1 to admit her in MBBS course in Scheduled Castes category on the basis of NEET-UG-2013 result for which she appeared in the counseling along with all her documents on 5.8.2013 at Guru Gobind Singh Medical College, Sadiq Road, Faridkot.
In short, the case of the petitioner is that she had qualified 10+2 examination from Lawrance Public Senior CWP No.17832 of 2013 (O&M) -2- Secondary School, SAS Nagar (Mohali) Punjab and cleared NEET-UG-2013 in the Scheduled Caste category with 88.7011 percentile and obtained 259 rank. Petitioner deposited the fees on 4.7.2013 and when she appeared for the Ist counseling held from 2.8.2013 to 05.08.2013 at Guru Gobind Singh Medical College, Faridkot, she came to know that respondent No.3, who secured 88.6092 percentile in the NEET-UG-2013 has been selected whereas the petitioner, who had secured 88.7011 percentile in NEET-UG-2013 was not selected. The petitioner has challenged the validity of the action of respondent No.1 by filing the present writ petition.
Learned counsel for the respondents has submitted that the petitioner was not selected as she does not belong to the caste which is recognised as a Scheduled Caste in the State of Punjab. Whereas, it is submitted by the petitioner that her father is working as a Senior Accountant in the office of Accountant General, Himachal Pradesh, who has been issued Scheduled Caste certificate. In this regard, the petitioner has made a reference to the certificate of Scheduled caste issued to her and her father, appended with the writ petition and has submitted that her case is covered by Clause 2(v) provided in letter dated 14.6.1999 issued by the Chief Secretary to Government of Punjab to all the Heads of the Department on the subject of issuance of certificate for the purpose of seeking admission to various educational/technical/professional institutions in the State CWP No.17832 of 2013 (O&M) -3- and also for employment. The Clause 2(v) of the letter dated 14.6.1999 relied upon by the petitioner reads as under: -
"The persons who are employed in Government of India or any other State Government are to be treated at par with the employees of the Government of Punjab in the matter of issue of Scheduled Caste certificate provided relevant Scheduled Caste certificate exists in their service record. The Scheduled Caste certificate in such will be issued by the respective Heads of Departments in the Proforma below:-
Learned counsel for the petitioner has submitted that according to Clause 2(v) of the letter dated 14.6.1999, the Scheduled Caste certificate issued by the State of Himachal Pradesh is thus at par with the Scheduled Caste certificate of the State of Punjab and thus the petitioner is eligible for consideration.
Mr.Anupam Gupta, learned Senior Advocate appearing on behalf of respondents No.1 and 2 has submitted that the petitioner belongs to Lohar caste which is a Scheduled Caste in the State of Himachal Pradesh but the said caste is not a Scheduled Caste in the State of Punjab, therefore, the petitioner cannot claim the parity. In this regard, he has first drawn the attention of this Court to CWP No.17832 of 2013 (O&M) -4- Article 341 & 342 of the Constitution of India. He has further referred to the Constitution (Scheduled Castes) Order, 1950, C.O. 19, purported to have been issued by the President of India under Article 341(1) declaring various castes as Scheduled Castes in their respective States and has also referred to the Constitution (Scheduled Castes) [(Union Territories)] Order 1951, C.O. 32, which is also purported to have been issued in exercise of powers under Article 341(1) of the Constitution of India by the President of India in respect of the castes mentioned in the Union Territories of Delhi, Chandigarh and Daman and Diu.
It is submitted by learned counsel for respondents Nos. 1 and 2 that as per Article 341 of the Constitution of India, the president may with respect to any State or Union Territory, by public notification, specify the groups within castes, races or tribes to the Scheduled Castes in relation to that State or Union Territory, as the case may be and once it is so declared, cannot change the notification which can only be changed by the Parliament by law for the purpose of including or excluding any castes from the list of Scheduled Castes specified in a notification issued under Article 341(1). Similar is the provisions of Article 342, which pertains to the Scheduled Tribes. He has further submitted that in the Constitution (Scheduled Castes) Order, 1950, C.O. 19, pertaining to the State of Himachal Pradesh, the caste Lohar to which the petitioner belongs is specifically mentioned as CWP No.17832 of 2013 (O&M) -5- Scheduled Caste whereas the said caste Lohar is conspicuous by its absence in the State of Punjab. In order to substantiate his submission further, learned counsel for respondents No.1 and 2 has relied upon decision of the Supreme Court in the case of "Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and others" 1990 (3) Supreme Court Cases 130 and subsequent judgment in the case of "Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another Vs. Union of India and another" 1994(5) Supreme Court Cases 244.
Learned counsel for respondents No.1 and 2 has extensively referred to the judgement of the Supreme Court in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another (Supra) wherein it is held that a person belonging to SC/ST in relation to his original State of which he is permanent or ordinary resident cannot be deemed to be so in relation to any other state on his migration to that State for the purpose of employment, education etc. Learned counsel for the petitioner has submitted that there is no quarrel with the ratio laid down in the case Marri Chandra Shekhar Rao (Supra) and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of CWP No.17832 of 2013 (O&M) -6- Maharashtra and another (Supra) relied upon by the learned counsel for respondents No.1 and 2 but he has relied upon a Single Bench judgement of this Court rendered in CWP No.14467 of 2012 titled as "Prateek Kumar Vs. Baba Farid University of health Sciences, Faridkot" decided on 23.8.2012 in which a similar provision involved has been interpreted in his favour.
However, learned counsel for respondents No.1 and 2 has submitted that even the case of Prateek Kumar (Supra) is not of any help of the petitioner. It is submitted that in the said case, the petitioner was belonging to Chamar caste which is a recognised Scheduled Caste in the State of Punjab and also in the State of Haryana. The petitioner in the said case also applied for admission to the MBBS course in the State of Punjab in the Scheduled Caste category on the basis of certificate issued by Union Territory, Chandigarh. The admission of the said petitioner was rejected by the University on the basis of the aforesaid judgment of the Supreme Court contending that a caste specified as Scheduled Caste in one State does not necessarily mean that another caste bearing the same nomenclature in other State, would entitle a person belonging to that caste to the rights, privileges and benefits admissible to a member of the Scheduled Caste in the later State. It is averred that the petitioner does not belong to Chamar caste, therefore, he is not entitled to admission on the basis of said certificate. In CWP No.17832 of 2013 (O&M) -7- this background, it was held by the Single Bench of this Court in the aforesaid case i.e. Prateek Kumar (Supra), that the petitioner belongs to Chamar caste which was also recognised as Scheduled Caste in the State of Punjab. It was also observed that it would have been a different matter if the objection had been that the caste of the petitioner, which is recognized as Scheduled Caste in Haryana is not recognized as Scheduled Caste in the State of Punjab but since Chamar caste is recognized as a Scheduled Caste in both the States, therefore, it was strongly observed that it would sound strange to notice that a person with caste Chamar starting from say 'Ambala' would loose his Caste as soon as he enters Punjab by traveling just a few kilometers distance, where Chamar is also a Scheduled Caste.
Learned counsel for the University has submitted that decision in the case of Prateek Kumar (Supra) is unexceptional and the University would have also not got any objection in considering the case of the petitioner had the caste to which she belongs, namely, Lohar which is a Scheduled Caste in the State of Himachal Pradesh is a caste in the Schedule of the State of Punjab as declared by the President in the Constitution (Scheduled Castes) Order, 1950, C.O. 19. He has further submitted that it is even provided in the Prospectus that certificate of Scheduled Caste has to be obtained which has been recognised as Scheduled Caste as per the Constitution (Scheduled Castes) Order, 1950, C.O. 19. CWP No.17832 of 2013 (O&M) -8- It is further argued that insofar as the instructions in letter dated 14.6.1999, relied upon by the petitioner, mentioned in Clause 2(v) are concerned, it would not override the provisions of the Constitution rather it has to be harmoniously construed in the spirit of Article 341 of the Constitution of India in the light of the decisions of the Supreme Court in the case of Marri Chandra Shekhar Rao (Supra) and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another (Supra).
Thus, in my considered opinion, the petitioner cannot take advantage of Clause 2(v) of the letter dated 14.6.1999 as it would operate in the field where the caste is in the Schedule of the Scheduled Caste in a particular State is also a caste in the Schedule of the Scheduled Caste of the State of Punjab and not otherwise.
In view of the aforesaid discussion, I do not find any merit in the present writ petition and the same is hereby dismissed.
(RAKESH KUMAR JAIN) 12.09.2013 JUDGE Vivek Pahwa Vivek 2013.09.17 13:44 I attest to the accuracy and integrity of this document