Himachal Pradesh High Court
Shivam Sharma vs State Of Himachal Pradesh And Others on 31 July, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 1353 of 2018 with
CWP's No. 1347, 1354, 1355, 1374,
.
1375, 1384, 1393, 1413, 1416,
1501, 1504 to 1508, 1517 & 1524 of 2018
Reserved on: July 23, 2018
Decided on: July 31, 2018
__________________________________________________________________
1. CWP No. 1353 of 2018
Shivam Sharma ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
2. CWP No. 1347 of 2018
Ms. Lavanya Kashiv ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
3.
CWP No. 1354 of 2018
Kartik Singh ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
4. CWP No. 1355 of 2018
Rashmi ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
5. CWP No. 1374 of 2018
Isha Sharma ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
6. CWP No. 1375 of 2018
Abhishek Singh ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
7. CWP No. 1384 of 2018
Aman Sharma ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
8. CWP No. 1393 of 2018
Nishant Thakur ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
9. CWP No. 1413 of 2018
Kartik Katoch ...Petitioner
Versus
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State of Himachal Pradesh and others ...Respondents
10. CWP No. 1416 of 2018
Vibhuti ...Petitioner
Versus
.
State of Himachal Pradesh and others ...Respondents
11. CWP No. 1501 of 2018
Vikas Thakur ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
12. CWP No. 1504 of 2018
Devika Sood ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
13. CWP No. 1505 of 2018
Akanksha Sharma ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
14. CWP No. 1506 of 2018
Arya Parashar ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
15. CWP No. 1507 of 2018
Archit Sharma ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
16. CWP No. 1508 of 2018
Oshin Puri ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
17. CWP No. 1517 of 2018
Saurav Sandal ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
18. CWP No. 1524 of 2018
Aayush Gupta ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
__________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
__________________________________________________________________
1
Whether reporters of the local papers may be allowed to see the judgment?
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For the Petitioner(s) : M/s Sunil Mohan Goel, Kulbhushan
Khajuria, Vinod Chauhan, Pardeep K.
Sharma, Raj Negi, Pawanish K. Shukla,
Vivek Singh Thakur and Adarsh K.
.
Vashishta, Advocates in respective
petitions.
For the Respondents : Mr. Ashok Sharma, AG with Mr. S.C.
Sharma and Mr. Dinesh Thakur, AAG's,
for the respondent-State in all the
petitions.
Mr. Neel Kamal Sharma, Advocate, for
the respondent-University in all the
petitions and for respondent-MBBS
Counselling Committee, in respective
r petitions.
Mr. Shrawan Dogra, Sr. Advocate with
Mr. Bharat Thakur, Mr. Devan Khanna
and Mr. Harsh Kalta, Advocates, for
respondents No. 4 and 7 in CWP No.
1353 of 2018.
Mr. B.C. Negi, Senior Advocate with Mr.
Nitin Thakur, Advocate, for respondent
No. 5 in CWP No. 1353 of 2018.
Mr. R.M. Bisht and Mr. Ravinder
Thakur, Advocates, for respondent No. 6
in CWP No. 1353 of 2018.
Mr. Surender Sharma, Advocate, for
respondent No. 8 in CWP No. 1353 of
2018.
__________________________________________________________________
Justice Sandeep Sharma, Judge
Above captioned writ petitions were heard and decided
by Hon'ble Division Bench of this Court comprising of Hon'ble Mr.
Justice Dharam Chand Chaudhary, Judge and Hon'ble Mr. Justice
Vivek Singh Thakur, Judge. The Members on the Hon'ble Division
Bench referred to herein above expressed divergence of opinion vide
two separate judgments delivered on 13.7.2018, as a consequence
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of which, cases at hand came to be placed before me. A careful
perusal of judgment(s) rendered by the Division Bench suggests
.
that following points were framed for determination after hearing
the rival contentions and perusing material adduced on record:
"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?"
2. Both the esteemed brothers on the Hon'ble Division
Bench have concurred as far as Point No. 3 formulated herein above
is concerned, as such, same does not require consideration/
adjudication by me. However, there appears to be disagreement
between the two Hon'ble Brother Judges as far as Points No. 1 and
2 are concerned. Vide his judgment, Hon'ble Mr. Justice Dharam
Chand Chaudhary, Judge dismissed all the petitions save and
except CWP No. 1501 of 2018 and held petitioner in CWP No. 1501
of 2018 and respondents No. 4 to 7 in CWP No. 1353 of 2018
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entitled to exemption from condition of passing two examinations
out of four from the schools situate in the State of Himachal
.
Pradesh affiliated to I.C.S.E., C.B.S.E. or H.P. Board of School
Education (herein after referred to as, 'Exemption') and
consequently, such students have been held entitled for admission
from their category. Hon'ble Mr. Justice Dharam Chand
Chaudhary, Judge has held that deletion of category 3(iv) from the
prospectus for the purpose of exemption is based on reasonable
classification because category 3(iv) and exempted category under
Clause 3(ii) are distinct and separate and there is rational
relationship between such classification and object sought to be
achieved by deletion of category 3(iv) and Note (1) appended below
it. Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge has
further held that classification is based upon various considerations
like topography of the State, socio-economic conditions 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 get chance of admission to the
MBBS/BDS courses to serve the State. Hon'ble Mr. Justice Dharam
Chand Chaudhary, Judge has further held that providing of benefit
of exemption to various categories is a policy decision taken by
competent authority and power to make policy also includes power
to withdraw it, as such no fault can be found with the decision of
the respondent-State in as much as withdrawal of exemption from
category 3(iv) is concerned.
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3. Hon'ble Mr. Justice Vivek Singh Thakur, Judge though
has concurred/agreed with the judgment authored by Hon'ble Mr.
.
Justice Dharam Chand Chaudhary, Judge so far power of
respondent-State/University to issue and modify prospectus and
issue corrigenda with regard to deletion of category 3(iv) under Part
IV(A) is concerned, but has held that though all the persons
mentioned in category 3(iv) are not similarly situate to that of
persons under category 3(ii) but persons who are bonafide
Himachali and employed in private sector outside the State of
Himachal Pradesh can be equated with the category 3(ii) and as
such, wholesale deletion of category of students, whose parents are
living outside the State of Himachal Pradesh on account of their
employment in private sector is violative of Article 14 of the
Constitution of India, and as such, decision in this regard taken by
the respondent-State is liable to be struck down to that extent.
Hon'ble Mr. Justice Vivek Singh Thakur, Judge has further held
that being a policy matter, though it is in the domain of the State to
take a decision as to whom exemption is to be provided but, at the
same time, such a decision should not be violative of Article 14 of
the Constitution of India. Hon'ble Mr. Justice Vivek Singh Thakur,
Judge has further returned the findings that deletion of category of
candidates, whose parents are employed in private sector and not
government or public sector, is violative of Article 14 of the
Constitution of India.
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4. It is evidently clear from the judgments rendered by
both the esteemed members of the Hon'ble Division Bench that
.
divergence of opinion is only with regard to validity and legality of
the decision taken by the respondent-State, wherein it has been
decided that benefit of Exemption shall not be available to wards of
persons employed in private sector and as such, I am to examine
and consider the material available on record solely with a view to
explore answer to the aforesaid issue, which otherwise stands
formulated as points No. 1 and 2 in the judgment rendered by the
Hon'ble Division Bench.
5. However, at this stage, it may be clarified that since
there is no divergence of opinion amongst the esteemed Brothers
sitting in the Hon'ble Division Bench as far as withdrawal of benefit
of exemption from the wards of persons, residing outside the State
on account of their private occupation, I shall consider only the
issue with regard to exclusion of wards of persons, residing outside
the State on account of their employment in private sector.
6. I have heard the learned counsel for the parties and
gone through the record carefully.
7. For the sake of convenience and clarity, facts and
documents/annexures placed alongwith CWP No. 1353 of 2018 are
being referred to in this judgment and reference shall also be made
to any other specific fact or document of other petition(s), if need so
arises.
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8. It may be noticed that the learned counsel representing
the parties have made their submissions almost on the similar lines
.
as were made before the Hon'ble Division Bench, as such same do
not require reproduction.
9. Certain undisputed facts as emerge from the record are
that the petitioners, save and except petitioner in CWP No. 1501 of
2018 and respondents No. 4 to 7 in CWP No. 1353 of 2018, are the
children of bona fide Himachalis residing outside the State of
Himachal Pradesh on account of their employment in private
sector/private occupation. Petitioner in CWP No. 1501 of 2018 and
respondents No.4 to 7 in CWP No. 1353 of 2018 are children of
bonafide Himachalis employed either in Central Government
Departments/ other State Governments/ local and other authorities
owned and controlled by Central Government/ other State
Governments. Respondent-University, after declaration of result of
NEET-UG-2018 issued prospectus-cum-application form (Annexure
P-11) for counseling and admission to under-graduate MBBS/BDS
courses in Indira Gandhi Medical College, Shimla, Dr. Rajendra
Prasad Government Medical College, Tanda and other private
Medical Colleges, Government Dental College and other private
Dental Colleges in the State of Himachal Pradesh for Academic
Session 2018-19. Part IV of the prospectus referred to herein above
prescribes the eligibility and qualifications for the State Quota
Seats, which provides as under:
"IV. ELIGIBILITY AND QUALIFICATIONS
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(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
2. The Bonafide Himachali students who are admitted to
Navodya Schools situated in Himachal Pradesh and who
have passed matric or +2 examinations under the
exchange programme from other Navodya Schools in the
Country shall also be eligible for admission to the above
courses.
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):-
(i) Children of Defence Personnel/Ex-Servicemen.
(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.
(iii) Children of employees of Himachal
Government/H.P. Govt. Undertaking/
Autonomous Bodies wholly owned by H.P.
Government.
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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.
(2) The merit list of qualified candidates of
NEET-UG-2018 who applied online to the
University within stipulated period will only be
drawn by the University and candidates those
will not found qualified in NEET, their
application forms will be rejected without any
notice and names of such candidates shall not
be included in the merit list. The application fee
shall not be refunded in any case."
10.
Clause 1 of Part IV(A) referred to herein above provides
that children of Bonafide Himachali/ Domicile/ Himachal
Government employees and employees of autonomous bodies
wholly or partially financed by the Himachal Pradesh Government,
who qualify NEET-UG-2018 shall 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 and they should have passed at least two exams out of four
examinations from the recognized schools or colleges situate 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. Clause 3 of Part IV(A) further provides that
students of certain categories, which are defined/prescribed in this
Clause itself are exempted from the condition of passing two
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examinations out of four specified above from recognized schools
affiliated to I.C.S.E., C.B.S.E. or H.P. Board of School Education
.
situate within Himachal Pradesh, provided that candidates of such
categories are bonafide Himachalis and their fathers/mothers are
living outside Himachal Pradesh on account of their
service/posting/private occupation. This clause further provides
that 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). Though in
Clause 3 of Part IV(A), there is mention of parents working outside
Himachal Pradesh on account of their service/posting/private
occupation but definitely in latter part of Clause 3, wherein
exempted categories have been specifically defined, there is no
mention of children of employees working outside the State of
Himachal Pradesh on account of employment in private
sector/private occupation.
11. At this stage, it may be noticed that there is no dispute
inter se parties that prior to publication of prospectus for Academic
Session 2018-19, exemption under Clause 3 of Part IV(A) as is
available to the children of bonafide Himachalis, who were working
outside the State of Himachal Pradesh on account of their
government service, was also available to wards of bonafide
Himachalis residing outside the State on account of their
employment in private sector alongwith other categories as
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defined/prescribed under Clause 3 of Part IV(A) of the prospectus
for the Academic Session 2018-19. Careful perusal of prospectuses
.
published by the Himachal Pradesh University for the Academic
Sessions 2013-14 (Annexure P-4), 2014-15 (Annexure P-5), 2015-
16 (Annexure P-6), 2016-17 (Annexure P-7) and 2017-18 (Annexure
P-8), reveals that children of bonafide Himachalis working outside
the State of Himachal Pradesh on account of employment in private
sector/occupation were also extended benefit of Exemption.
12. On r12.6.2018, respondent-University issued
prospectus-cum-application form for counselling/admission for
under-graduate MBBS/ BDS courses, Annexure P-9, wherein
words, "private occupation" though were mentioned under Clause 3
of Part IV(A) but such category was not prescribed/defined in the
exempted categories specifically prescribed below Clause 3 of Part
IV(A). On 13.6.2018, corrigendum (Annexure P-12) came to be
issued clarifying therein that in the prospectus for admission to
MBBS/BDS courses for the Academic Session 2018-19, words,
"private occupation" under eligibility Clause IV(A)3 at page 17 stand
deleted and prospectus stands modified accordingly. After issuance
of aforesaid corrigendum, respondents issued amended/modified
prospectus for the Academic Session 2018-19, deleting therein
words, "private occupation" under Part IV(A)3, as a consequence of
which, benefit of exemption, which was otherwise earlier available
to the children of persons working outside the State of Himachal
Pradesh on account of their employment in private sector/private
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occupation, came to be withdrawn. Though petitioners have not laid
specific challenge to the action of the respondent-State in as much
.
as withdrawal of benefit of exemption is concerned, rather, prayer is
only to quash corrigenda (Annexures P-10 and P-12) and modified
prospectuses (Annexures P-11 and P-13) whereby words, "private
occupation" in eligibility clause IV(A)3 and Note (1) appended
thereto came to be deleted but the Division Bench not only allowed
the learned counsel representing the petitioners to raise/make
submissions assailing the action of the State in withdrawing benefit
of exemption available to the children of the persons working
outside the State on account of their employment in private sector/
private occupation but also returned definite findings qua validity
and legality of the aforesaid decision of respondent-State, though in
divergence.
13. Learned counsel representing the petitioners
strenuously argued that denial of exemption to petitioners whose
parents are working outside the State on account of their
employment in private sector/private occupation, can not be
allowed to sustain being violative of Article 14 of the Constitution of
India. Learned counsel for the petitioners also made an attempt to
persuade this Court that the petitioners have been taken by
surprise by the respondents by withdrawing the Exemption from
the petitioners and such illegal action of the respondents has
snatched from them their right to seek admission to MBBS/BDS
courses in the colleges situated in the State, especially when such
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concession/ exemption has been allowed to be continued in favour
of the petitioner in CWP No. 1501 of 2018 and respondents No. 4 to
.
7 in CWP No. 1353 of 2018 i.e. children/students, whose parents
are residing outside the State of Himachal Pradesh on account of
their job either in Central Government Departments, others State
Governments or Boards/Corporations and other authorities owned
and controlled by Central Government or other State Governments.
Learned counsel further argued that the respondent-State by
deleting the provision qua the Exemption being provided to the
petitioners vis-à-vis exempted category 3(ii) has made a
classification which is not founded on intelligible differentia rather
distinguishes petitioners from candidates of exempted category 3(ii).
Learned counsel for the petitioners further argued that
differentiation as made has no rationale with the object sought to
be achieved, as such, decision taken in this regard by the State
deserves to be quashed and set aside.
14. Lastly, learned counsel representing the petitioners
forcefully argued that petitioners' parents are residing outside the
State of Himachal Pradesh to earn their livelihood by working in
private sector/ private occupation not by their choice but because
of compulsion because they were not able to secure jobs in the
State. Learned counsel further contended that prospectus
(Annexure P-9) for Academic Session 2018-19 could not have been
amended by way of corrigendum that too after its issuance as such
exclusion of petitioners, who are children of persons, working
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outside the State of Himachal Pradesh on account of their
employment in private sector/occupation, from the categories to
.
whom benefit of Exemption has been provided, is not only arbitrary
and discriminatory rather a colourable exercise of power by the
respondent-State.
15. On the other hand, Mr.Ashok Sharma, learned
Advocate General duly assisted by Mr. S.C. Sharma and Mr. Dinesh
Thakur, Additional Advocates General, defended the decision of the
respondent-State so far deletion of category 3(iv) from Part IV(A) is
concerned and argued that decision of deletion of category 3(iv) was
taken at highest level being a policy matter and can not be
interfered with by this Court. Mr. Ashok Sharma, learned Advocate
General argued that the words, "private occupation" and Note (1)
appended below thereto were reflected inadvertently in the
prospectus for the Academic Session 2018-19 and it does not confer
any right in favour of the petitioners to seek exemption, moreover
such mistake was rectified on the very next date by issuing
corrigenda. While refuting contention of the learned counsel
representing the petitioners that they were taken by surprise and
have been left high and dry, Mr. Ashok Sharma, learned Advocate
General contended that petitioners were well aware of concession
being available upto Academic Session 2017-18. He argued that
decision to withdraw the benefit of exemption available to the
category of petitioners is neither arbitrary nor violative of Article 14
of the Constitution, rather decision with regard to deletion of 3(iv)
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and Note (1) appended below it, from the Academic Session 2018-19
is purely a policy decision hence doctrine of legitimate expectations
.
is not attracted. He further argued that decision to withdraw the
concession available to the category of petitioners has been taken in
the interest of the State and its residents and there is no
arbitrariness in the same. While defending the decision of the
respondent-State to continue benefit of exemption to category 3(ii),
Mr. Ashok Sharma, learned Advocate General argued that
exemption granted to aforesaid category is legal and valid and by no
stretch of imagination, petitioners can be equated with the aforesaid
category as defined under Clause 3(ii) of Part IV(A). Learned
Advocate General further submitted that the petitioners can not
seek any parity with the children of the aforesaid exempted category
as mentioned in Clause 3(ii) under Part IV(A), which still exists in
the prospectus published for admission to MBBS/BDS courses
during Academic Session 2018-19 and State being policy-maker is
competent to take any decision in the interest of justice.
16. Before ascertaining correctness of the aforesaid
submissions having been made by the learned counsel representing
the parties vis-à-vis issue at hand, it may be observed that there is
no dispute that eligibility criterion i.e. requirement of passing two
examinations out of four from the schools situate in the State of
Himachal Pradesh, was held to be legal and valid by the Division
Bench of this Court in Gagan Deep vs. State 1996 (1) Sim. L.C.
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242. It would be profitable to take note of following paras of the
aforesaid judgment:
.
"4. Further contention of the petitioners is that Part-IV of
the prospectus provides that:
"IV. ELIGIBILITY
I. Candidates who have to compete for admission
to Indira Gandhi Medical College, Shimla (MBBS) and
Himachal Pradesh Government Dental College and
Hospital Shimla (BDS), OR Free seats available in
various private Dental Colleges and Medical College
situate in Himachal Pradesh should have passed
atleast two of the following examinations from the
recognized Schools and Colleges, situated in the State
of Himachal Pradesh:--
(a) Middle or Equivalent.
(b) Matric or Equivalent.
(c) 10+2 or Equivalent."
xxxx
27. The third facet for sustaining the eligibility is equally
efficacious when it is pointed out by the respondents that
although quite a large number of persons have qualified
medical degree from the State Medical College, yet people are
deprived of medical facilities in rural and far flung areas of
the State since the doctors do not want to go to such areas
and they flee the State to avoid postings in such areas.
Although bond amount has been increased, yet that has not
given the desired results. State Government is spending lacs
of rupees on a student for doing the medical course but the
amount is going into the drawins since they are not prepared
to remain in the State and serve the people.
28. The fourth facet is about the arbitrariness,
unjustness and hardship being caused to the petitioners by
the eligibility criteria. Having up-held the institutional
preference and accepting the submission of the learned
Advocate General that the candidates studying in Schools,
Colleges and Institutions situated in the State of Himachal
Pradesh form a separate category and are entitled to
protection to enable them to secure admissions in the
medical institutions as compared to the petitioners and
similarly placed candidates falling in different group with
better facilities and chances to appear in the institutions
located in the States they are studying, nothing much
remains for examination of this question, more particularly,
in view of the latest decision of the apex Court reported in
Anant Madaan v. State of Haryana and others, (1995) 2 SCC
135 upholding reservation of 85 per cent seats to
MBBS/BDS Courses on the basis of candidates' education
for preceding three years in the State and rejecting the
contention of the reservation being arbitrary, discriminatory
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and causing hardship. It is necessary to quote paras 8 and 9
of this judgment:
"8. In view of the above facts, we have to consider
.
whether the condition requiring a candidate to have
studied in 10th, 10+1 and 10+2 classes in a
recognised institution in the State of Haryana, can be
considered as arbitrary or unreasonable. It is by now
well settled that preference in admissions on the basis
of residence, as well as institutional preference is
permissible so long as there is no total reservation on
the basis of residential or institutional preference. As
far back as in 1955, in the case of D.P Joshi v. State
of Madhya Bharat, this Court making a distinction
between the place of birth and residence, upheld a
preference on the basis of residence in aducational
institutions."
"9. In the case of Jagdish Saran (Dr.) v. Union of
India this Court reiterated that regional preference or
rpreference on the ground of residence in granting
admission to medical colleges was not arbitrary or
unreasonable so long as it was not a wholesale
reservation on this basis. This Court referred to
various reasons why such preference may be
required. For example, the residents of a particular
region may have very limited opportunities for
technical education while the region may require such
technically qualified persons. Candidates who were
residents of that region were more likely to remain in
the region and serve their region if they were preferred
for admission to technical institutions in the State,
particularly medical colleges. A State which was short
of medical personnel would be justified in giving
preference to its own residents in medical colleges as
these residents, after qualifying as doctors, were more
likely to remain in the State and give their services to
their State. The Court also observed that in the case
of women students, regional or residential preference
may be justified as their parents may not be willing to
send them outside the State for medical education.
We, however, need not examine the various reasons
which have impelled this Court to uphold residential
or institutional preference for admission to medical
colleges. The question is settled by the decision of this
Court in Pradeep Jain (Dr) v. Union of India. This
Court has observed in that judgment: (SCR p. 981 :
SCC p. 687, para 19)
'We are, therefore, of the view that a certain
percentage of reservation on the basis of residence
requirement may legitimately be made in order to
equalise opportunities for medical admission on a
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broader basis and to bring about real and not
formal, actual and not merely legal, equality. The
percentage of reservation made on this count may
also include institutional reservation for students
.
passing the PUC or pre-medical examination of the
same university or clearing the qualifying
examination from the school system of the
educational hinterland of the medical colleges in
the State......'
This Court held in that case that reservation to the
extent of 70% on this basis would be permissible. This
percentage of reservation was subsequently increased to
85% by this Court in the case of Dinesh Kumar (Dr) v.
Motilal Nehru Medical College. This Court in that case
directed an entrance examination on an all-India basis
for the remaining 15% of seats."
Consequently, all the submission raised by the petitioners
on this aspect of the case are rejected.
29. Next, it was contended that children of defence
personnel have been severely affected by this eligibility
criteria since they have to serve outside the State in the
exigency of their service. As a mater of fact, this contention
is similar to the contention raised by the learned Counsel
appearing for other petitioners who also studied outside the
State due to the service of their parents or some other
reasons, therefore, deserves to be rejected. Apart from that,
it was pointed out to us by the learned Advocate General
that the children of Army personnel seek admission in the
Army Medical College, Pune. They get one seat by
nomination against 'Group-A (8) Reserved' ; in all 19 seats in
12 Medical Colleges in the Country and BDS too as per
office Memorandum No. U-14014/8/95. ME (UG), dated July
28, 1995 of the Government of India, Ministry of Health and
Family Welfare, (Department of Health), New Delhi and the
statement annexed therewith. They can also compete for
seats against 'Group-A(5) as well as 15 seats to be filled on
the basis of all-India Entrance Test. In the State of Haryana,
there is no nomination for Government of India. The
petitioners can seek admission in the States they have
studied (see the prospectus for admission furnished by Miss
Neetika Ahuja and others, C.M.P. No. 2197 of 1995). In any
case, they can not be extended benefit here as well as there.
Argument of hardship has no force. It is well settled that
mere hardship caused to one or more persons due to
operation of a rule or policy decision cannot be a ground for
invalidating the rule or policy which is otherwise
constitutionally valid."
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17. Subsequent to passing of aforesaid judgment in Gagan
Deep (supra), Division Bench of this Court in VIKRAM SINGH
.
NEGI v. STATE OF H.P. (2009) 2 Shim. LC 362, held that
respondent-State was competent to include or exclude any category
for grant of reservation. It would be profitable to take note of the
following paras of the aforesaid judgment:
"3. It would be apposite to refer to eligibility clauses 1 to 3:-
"1. Children of bonafide Himachali/Himachal Govt.
employees and employees of autonomous bodies
wholly or partially financed by the Himachal Pradesh
Government will only be eligible to apply for
competing for admission to MBBS/BDS Courses
through Entrance Test in Government Medical/Dental
colleges including 50% State Quota seats in Private
un-aided Dental Colleges situated in Himachal
Pradesh. They should have passed at least two of the
following examinations from the recognized schools or
colleges situated in the State of Himachal Pradesh
and affiliated to ICSE/CBSE and 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
2. The bonafide Himachali students who are admitted to
Navodya Schools situated in Himachal Pradesh and
who pass matric or +2 examination under the
exchange programme from other Navodya Schools in
the Country shall also be eligible for admission to the
above courses.
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 situated in Himachal Pradesh
provided that the candidates of these categories
should be bonafide Himachali and their parents be
living outside Himachal Pradesh on account of their
service and in their case non-schooling in H.P. shall
not debar them from competing against any of the
seats whether reserved or otherwise (except backward
area seats):-
(i) Children of Defence Personnel/Ex-servicemen
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Or
(ii) Children of Employees of Central Government
including U.T./ Other State Governments and
children of employees of the Autonomous
.
Organizations/Semi Government Bodies of
Central Government and Other State
Governments.
Or
(iii) Children of Himachal Government
Employees/Employees of wholly owned H.P.
Govt. undertakings/Autonomous Bodies."
4. Shri Varun Thakur, Advocate has strenuously
contended that the persons who are working in other
State Governments or Semi Government and
Autonomous Bodies of other States Government have
willingly left the State out of their own volition and
therefore, the exemption granted in their favour is
illegal and violative or Article 14 of the Constitution of
India. He has placed reliance on the judgment of the
apex Court in Anant Madan versus State of Haryana
and others, (1995) 2 SCC 135; Nishant Puri versus
State of H.P. and others, AIR 1999 SC 227 and a
judgment of this court delivered in Gagan Deep vs.
State, 1996 (1) Sim. L.C. 242.
5. In Anant Madan's case, the apex Court was concerned
with the conditions laid down in the State of Haryana
which provided that to be eligible for admission in the
Medical Colleges, the students must have studied
class 10, 10+1 and 10+2 in a recognized institution of
the State of Haryana. This was a condition laid down
by the Government and challenged by certain
students. This condition was upheld by the apex
Court on the ground that the State was entitled to
make such reservation.
6. In Nishant Puri's case, the petitioner's mother was an
employee of the State of H.P. She went on deputation
to the Central Government and Nishant Puri
consequently studied outside Himachal Pradesh. His
candidature was rejected on the ground that he did
not qualify the requisite number of examination from
the Schools situated within the State. He laid
challenge to this and his petition was dismissed by
this Court. In Appeal filed before the apex Court, it
was held that the mother of the appellant went on
deputation on her own request on health ground to
the Centre but continued to be an employee of the
State. She maintained her lien in the State of H.P.
and therefore would fall under the category of State
Government employee and could not be treated as a
Central Government employee. Therefore, her son was
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not entitled to claim exemption from the conditions
laid down. In our considered view this judgment has
no relevance to the case in hand.
.
7. In Gagandeep's case (supra), a Division Bench of this
court upheld the validity of the eligibility criteria laid
down in the prospectus whereby at that relevant time
it was provided that the students must have passed
two out of three examinations i.e. Middle or
equivalent, Matric or equivalent and 10+2 or
equivalent from the Schools situated within the State
of H.P. The question whether children of bona fide
Himachalis, who were employees of some other States
or working in Autonomous/ Government
Organizations of such State Governments should be
given such benefit or not was never considered in any
of these cases.
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
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 and 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.
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9. In the present case, we find that the exemption
granted to children of bona fide Himachalis serving
other States or Semi Government or Autonomous
Organizations under different State Governments is
.
not at all violative of the provisions of Article 14 of the
Constitution of India. We may take judicial notice of
the fact that all educated persons belonging to H.P.
cannot be given employment in the State. Due to this
reason, some of them have to perforce take up jobs
out side the State of Himachal Pradesh. We see no
reason why the children of these persons, who have
taken up jobs outside the State of H.P., but who are
bona fide residents of Himachal should be denied
admission to the Medical Colleges within the State of
Himachal Pradesh. The roots of these people are in
Himachal Pradesh and therefore, the State has rightly
decided to extend the benefit of the exemption to such
persons. There is no merit in this writ petition which
is accordingly dismissed."
18. Decision of the respondent-State to provide exemption
to the category of wards of retired/serving employees of Central
Government/other State Governments/UT and wards of employees
of autonomous organisations, semi-government bodies owned and
controlled by Central Government/ UT's/ other State Governments
i.e. 3(ii) of Part IV(A) has been already held to be legal and valid as
such decision of respondent-State to continue providing such
Exemption to the category referred to herein above can not be
questioned at all. Otherwise also, no specific challenge in this
regard has been laid in the present petitions, rather, attempt has
been made by the learned counsel representing the petitioners to
show that the petitioners are also entitled to same benefit like
category 3(ii) of eligibility clause IV(A), because their parents are
also residing out of the State on account of their employment in
private sector/occupation. In Vikram Singh Negi (supra), judicial
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notice of the fact has been taken that all educated persons
belonging to Himachal Pradesh can not get government employment
.
in the State and as such some of them may take up jobs outside the
State of Himachal Pradesh and in this background, Hon'ble Division
Bench arrived at a conclusion that there was no reason why the
children of those persons, who have taken jobs outside the State of
Himachal Pradesh but are bonafide residents of Himachal, should
be denied admission to medical colleges in the State.
19. Subsequently, in Nishant Puri vs. State of H.P. and
others AIR 1999 SC 227, Hon'ble Apex Court while examining the
issue that whether a State Government employee lent on deputation
at request or on health grounds to a Central Government
Department can be considered as "serving Central Government
employee" within the meaning of eligibility clause as provided in
Himachal Pradesh University combined prospectus for admission
to MBBS /BDS/ BMS courses, held that purpose behind the clause
relating to eligibility appears to be that bonafide Himachali students
should be given preference over others. Hon'ble Apex Court further
held that in achieving above object, care is to be taken to protect
the interests of those students, whose parents are obliged to move
out of the State on account of exigencies of service by reason of
which the children also move out of State. In the case before the
apex court, State Government employee went on deputation on her
own request on medical grounds to work as an employee of Central
Government but still retained her lien with the State Government
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and as such, she was not held entitled to benefit of exemption from
passing two examinations out of four from schools situate in the
.
State of Himachal Pradesh. It appears that after aforesaid
pronouncement made by Hon'ble Apex Court in Nishant Puri
(supra) and verdict given by this Court in Gagan Deep (supra),
respondent-State took a conscious decision to provide exemption
from condition of passing two examinations from the schools of
State to the candidates whose parents reside outside the State of
Himachal Pradesh on account of their service, be it in government
or private sector, on the principles as laid down by Hon'ble Apex
Court in Meenakshi Malik vs. University of Delhi & Ors (1989) 3
SCC 112.
20. It is not in dispute that for the first time in the year
2013-14, benefit of Exemption came to be extended to
students/candidates, who are children of bonafide Himachalis
working outside the State on account of their
service/posting/private occupation. It is also not in dispute that the
respondents kept on extending aforesaid benefit of exemption to the
category of petitioners till Academic Session 2017-18. Even at the
first instance, respondents in the prospectus issued for the
Academic Session 2018-19, mentioned category, "private
occupation" in Clause 3 of Part IV(A), however, the same is/was not
specifically defined/described in the categories specifically
mentioned below Clause 3 of eligibility clause IV. That is another
matter that such mention of words, "private occupation" and Note
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(1) appended thereto subsequently came to be deleted by way of
corrigenda. One of the reasons/arguments advanced on behalf of
.
the State for withdrawal of Exemption from the petitioners is that
the recommendations of the Prospectus Review Committee were
placed before the State Government at the highest level, who in its
wisdom decided to withdraw benefit of exemption available to the
category of petitioners. Matter came to be dealt by the Government
on the basis of report of Prospectus Review Committee, which
stands reproduced in para-13 of the judgment rendered by the
Division Bench. It has been stated in the report of the Prospectus
Review Committee that this exemption was introduced in the
Academic Session 2013-14 but even at that time, Director Medical
Education, Himachal Pradesh, had opposed this exemption on the
ground that it would be difficult to verify the bonafides of such
candidates, however, Government introduced exemption overruling
him. It is further observed in the report that with this exemption,
every bonafide Himachali is exempted from schooling in the State
and this exemption would effectively make all bonafide Himachalis
eligible for admission making schooling condition infructuous and
as such, it was proposed that exemption from schooling condition
for the children of persons employed in private sector/private
occupation be removed. In the year 2013-14, Director Medical
Education had opposed exemption on the ground that it would be
difficult to verify bonafides of such candidates but there is no
material adduced on record by the respondent-State to demonstrate
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that during Academic Sessions 2013-14, 2014-15, 2015-16, 2016-
17 and 2017-18, difficulty, if any, arose as far as verification of
.
bonafides of the candidates, who applied taking benefit of
exemption available to them, is concerned. Similarly, another logic
/reasoning advanced by the Prospectus Review Committee that
continuation of exemption as introduced in the Academic Session
2013-14 would effectively mean that all bonafide Himachalis will be
eligible for admission, making schooling condition infructuous, does
not appear to be tenable, especially in view of the fact that other
category i.e. children of bonafide Himachalis, residing outside the
State on account of their posting in Central Government
Departments/UT's or other State Governments or other
bodies/organizations of Central Government/UT's/ other State
Governments, have been allowed such exemption. Aforesaid
recommendation made by Prospectus Review Committee may hold
some water as far as category of persons doing private occupation
outside State of Himachal Pradesh is concerned but definitely
withdrawal of benefit of Exemption from the petitioners, which has
been otherwise made available to the wards of other categories of
employees working under Central Government/ UT's/ other State
Governments, could not be withdrawn qua children/students, who
are compelled to reside outside Himachal Pradesh on account of
employment of in private sector.
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21. No doubt, decision with respect to providing of benefit
of Exemption is a policy decision to be taken by competent
.
authority, but such decision can not be arbitrary, irrational and
without any basis and can be tested on the touchstone of Article 14
of the Constitution of India.
22. Since my esteemed Brothers on the Hon'ble Division
Bench are in respectful agreement that persons belonging to the
category of "private occupation" are not eligible for benefit of
Exemption, this Court in the present case shall only be considering
claim of the category of the petitioners, who are children of bonafide
Himachalis working outside the State of Himachal Pradesh on
account of their employment in private sector.
23. Judgment rendered by the Hon'ble Division Bench, if is
read in its entirety, clearly reveals that both the Hon'ble Judges on
the Bench are in agreement with each other that the persons
employed in private sector can be said to have some resemblance
with the employees under exempted category 3(ii) but one of Hon'ble
Members of the Division Bench has held that it is for the policy
makers to take a decision in this regard and since decision stands
taken, it is not open for judicial scrutiny because it is policy makers
who had included this category for the first time in Academic
Session 2013-14 and it is again policy makers who, in their wisdom
have dropped the same from current Academic Session. There can
not be any dispute/quarrel with the findings returned by my
esteemed brothers that persons engaged in private occupation are
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not entitled for the Exemption because, by no stretch of
imagination, it can be said that they have left the State under any
.
compulsion because, admittedly they could also start such
occupation in the State of Himachal Pradesh itself, but since they
chose/ decided to start such business/occupation outside the State
of Himachal Pradesh, with a view to earn more, they can not be
allowed to claim benefit of exemption from condition of passing two
examinations out of four from the schools situate in the State of
Himachal Pradesh. However, I am of the view that the policy makers
have not rightly differentiated the wards of persons employed in
private sector from the exempted category 3(ii). It is not in dispute
that children of serving/retired employees of Central
Government/UT's and other State Governments and children of
employees of autonomous bodies, semi-government bodies of
Central Government/UT's or other State Governments have been
extended benefit of Exemption on the ground that their parents are
compelled to serve outside the State on account of their service, on
the same analogy, decision was taken in the year 2013-14 to extend
benefit of exemption to the category of petitioners, whose parents
are residing outside the State on account of employment in private
sector and as such arguments advanced by Mr. Ashok Sharma,
learned Advocate General can not be accepted that the two
categories are distinct and separate and do not form one group.
Benefit of Exemption is only on account of service rendered by
bonafide Himachali outside the State of Himachal Pradesh, and as
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such exemption can not be only made available to the children of
persons, who work under the Central Government/other State
.
Governments/ UT's and not to the persons who reside or live
outside the State of Himachal Pradesh on account of their
employment in private sector. Benefit of Exemption to the
candidates is on account of rendering of services by their parents,
outside the State and not on account of government service.
24. Hon'ble Apex Court in Pradeep Jain v. Union of India,
(1984) 3 SCC 654, has held that object of any valid scheme to
Medical/Dental colleges must be to select the best candidates for
being admitted to these colleges. However, in this case, Hon'ble
Apex Court taking note of "State Interest" and "Region's claim of
backwardness" permitted State to depart from the principle of
'selection on merit'. In the aforesaid case, Hon'ble Apex Court held
that Government, which bears the financial burden of running
Government colleges, is entitled to lay down criteria for admission
to its own college(s) and source from which admissions would be
made, provided such classification is not arbitrary and has
reasonable connection with the object of Rules and classification of
candidates on the basis of passing out of examination from
particular institution.
25. At this stage, following paragraphs of judgment
rendered by Hon'ble Apex Court in Pradeep Jain (supra), can be
usefully relied:
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"12. But let us understand what we mean when we say that
selection for admission to medical colleges must be based
on merit. What is merit which must govern the process of
selection? It undoubtedly consists of a high degree of
.
intelligence coupled with a keen and incisive mind, sound
knowledge of the basic subjects and infinite capacity for
hard work, but that is not enough; it also calls for a sense
of social commitment and dedication to the cause of the
poor. We agree with Krishna Iyer, J. when he says in
Jagdish Saran5: (SCC p. 778, para 21)
If potential for rural service or aptitude for rendering
medical attention among backward people is a criterion
of merit-and it, undoubtedly, is in a land of sickness
and misery, neglect and penury, wails and tears-then,
surely, belonging to a university catering to a deprived
region is a plus point of merit. Excellence is composite
and the heart and its sensitivity are as precious in the
scale of educational values as the head and its
creativity and social medicine for the common people is
more relevant than peak performance in freak cases."
Merit cannot be measured in terms of marks alone, but
human sympathies are equally important. The heart is as
much a factor as the head in assessing the social value of
a member of the medical profession. This is also an aspect
which may, to the limited extent possible, be borne in
mind while determining merit for selection of candidates
for admission to medical colleges though concededly it
would not be easy to do so, since it is a factor which is
extremely difficult to judge and not easily susceptible to
evaluation.
13. We may now proceed to consider what are the
circumstances in which departure may justifiably be made
from the principle of selection based on merit. Obviously,
such departure can be justified only on equality-oriented
grounds, for whatever be the principle of selection followed
for making admissions to medical colleges, it must satisfy
the test of equality. Now the concept of equality under the
Constitution is a dynamic concept. It takes within its
sweep every process of equalisation and protective
discrimination. Equality must not remain mere idle
incantation but it must become a living reality for the
large masses of people. In a hierarchical society with an
indelible feudal stamp and incurable actual inequality, it
is absurd to suggest that progressive measures to
eliminate group disabilities and promote collective equality
are antagonistic to equality on the ground that every
individual is entitled to equality of opportunity based
purely on merit judged by the marks obtained by him. We
cannot countenance such a suggestion, for to do so would
make the equality clause sterile and perpetuate existing
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inequalities. Equality of opportunity is not simply a matter
of legal equality. Its existence depends not merely on the
absence of disabilities but on the presence of abilities.
Where, therefore, there is inequality, in fact, legal equality
.
always tends to accentuate it. What the famous poet
William Blake said graphically is very true, namely, "One
law for the Lion and the Ox is oppression," Those who are
unequal, in fact, cannot treated by identical standards;
that may be equality in law but it would certainly not be
real equality. It is, therefore, necessary to take into
account de facto inequalities which exist in the society
and to take affirmative action by way of giving preference
to the socially and economically disadvantaged persons or
inflicting handicaps on those more advantageously placed,
in order to bring about real equality Such affirmative
action though apparently discriminatory is calculated to
produce equality an a broader basis by eliminating de
facto inequalities and placing the weaker sections of the
community on a footing of equality with the stronger and
more powerful sections, so that each member of the
community, whatever is his birth occupation or social
position may enjoy equal opportunity of using to the full
his natural endowments of physique, of character and of
intelligence. We may in this connection usefully quote
what Mathew, J. said in Ahmedabad St. Xavier's College
Society and Anr. v. State of Gujarat8: (SCC p. 799, para
132)
.......it is obvious that "equality in law precludes
discrimination of any kind; whereas equality, in fact,
may involve the necessity of differential treatment in
order to attain a result which establishes an equilibrium
between different situations."
We cannot, therefore, have arid equality which does not
take into account the social and economic disabilities and
inequalities from which large masses of people suffer in
the country. Equality in law must produce real equality;
de jure equality must ultimately find its raison d'etre in de
facto equality. The State must, therefore, resort to
compensatory State action for the purpose of making
people who are factually unequal in their wealth,
education or social environment, equal in specified areas.
The State must, to use again the words of Krishna Iyer. J.
in Jagdish Saran case5 (SCC p. 782, para 29) " weave
those special facilities into the web of equality which, in an
equitable setting provide for the weak and promote their
levelling up so that, in the long run, the community at
large may enjoy a general measure of real equal
opportunity..... equality is not negated or neglected where
special provisions are geared to the larger goal of the
disabled getting over their disablement consistently with
the general good and individual merit." The scheme of
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admission to medical colleges may, therefore, depart from
the principle of selection based on merit, where it is
necessary to do so for the purpose of bringing about real
equality of opportunity between those who are unequals.
.
14. There are, in the application of this principle, two
considerations which appear to have weighed with the
Courts in justifying departure from the principle of
selection based on merit. One is what may be called State
interest and the other is what may be described as a
region's claim of backwardness. The legitimacy of claim of
State interest was recognised explicitly in one of the early
decisions of this Court in D.P. Joshi case2 The Rule
impugned in this case was a Rule made by the State of
Madhya Bharat for admission to the Mahatma Gandhi
Memorial Medical College, Indore providing that no
capitation fee should be charged for students who are
bona fide residents of Madhya Bharat but for other non-
Madhya Bharat students, there should be a capitation fee
of Rs. 1300 for nominees and Rs. 1500 for others. The
expression 'bona fide resident' was defined for the purpose
of this Rule to mean inter alia a citizen whose original
domicile was in Madhya Bharat provided he had not
acquired a domicile elsewhere or a citizen whose original
domicile was not in Madhya Bharat but who had acquired
a domicile in Madhya Bharat and had resided there for not
less than five years at the date of the application for
admission. The constitutional validity of this Rule was
challenged on the ground that it discriminated between
students who were bona fide residents of Madhya Bharat
and students who were not and since this discrimination
was based on residence in the State of Madhya Bharat, it
was violative of Article 14 of the Constitution. The Court
by a majority of four against one held that the Rule was
not discriminatory as being in contravention of Article 14,
because the classification between students who were
bona fide residents of Madhya Bharat and those who were
not was based on an intelligible differentia having rational
relation to the object of the Rule. Venkatarama Ayyar, J.
speaking on behalf of the majority observed:
"The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage education within its borders. Education is a State subject, and one of the directive principles declared in Part IV of the Constitution is that the State should make effective provisions for education within the limits of its economy. (Vide Article
41). The State has to contribute for the up keep and the running of its educational institutions. We are in this petition concerned with a Medical College, and it is well known that it requires considerable finance to ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 34 maintain such an institution. If the State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least enure for the benefit of the .
State? A concession given to the residents of the State in the matter of fees is obviously calculated to serve that end, as presumably some of them might, after passing out of the College, settle down as doctors and serve the needs of the locality. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in consequence not open to attack. It has been held in The State of Punjab v. Ajaib Singh10 that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern, primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of Article 14 must be rejected."(emphasis supplied) It may be noted that here discrimination was based on residence within the State of Madhya Bharat and yet it was held justified on the ground that the object of the State in making the Rules was to encourage students who were residents of Madhya Bharat to take up the medical course so that "some of them might, after passing out from the college, settle down as doctors and serve the needs of the locality" and the classification made by the Rule had rational relation to this object. This justification of the discrimination based on residence obviously rests on the assumption that those who were bona fide residents of Madhya Bharat would after becoming doctors settle down and serve the needs of the people in the State. We are not sure whether any facts were pleaded in the affidavits justifying this assumption but the judgment of Venkatarama Ayyar, J. shows that the decision of the majority Judges proceeded on this assumption and that was regarded as a valid ground justifying the discrimination made by the impugned Rule."
26. Issue with regard to classification of candidates on the basis of passing of examination from a particular institution has been repeatedly held to be justified by the Hon'ble Apex Court in a plethora of cases i.e. Dr. Dinesh Kumar and others vs. Motilal Nehru Medical College, Allahabad and others, (1986) 3 SCC 727, Anant Madaan vs. State of Haryana and others, (1995) 2 SCC 135 ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 35 and Meenakshi Malik vs. University of Delhi and others, (1989) 3 SCC 112 and Nandita Kalra. Apart from aforesaid judgments, .
Division Bench of this Court had an occasion to deal with issue of exemption in Gagan Deep (supra) and Vikram Singh Negi (supra), wherein decision of the State to provide exemption from passing two examinations out of four from the State of Himachal Pradesh to the category of students/ children of bonafide Himachalis serving outside the State of Himachal Pradesh on account of their service has been approved. Since ratio laid down in the aforesaid judgment has been elaborately considered and dealt with by my esteemed Brothers in their judgment(s), same are not reproduced herein for the sake of brevity.
27. By now it is well settled that Article 14 of the Constitution forbids class legislation but does not forbid reasonable classification. Hon'ble Apex Court in Union of India & Ors. vs. N. Rathnam & sons, (2015) 10 SCC 681, specifically held that if two persons or two sets of persons are similarly situated/placed, they have to be treated equally. In the aforesaid judgment Hon'ble Apex Court has held that 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. Though, in the aforesaid judgment, Hon'ble Apex Court has held that legislature is competent to exercise its discretion and make classification and every classification is in some degree likely ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 36 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 two persons belong to same class/category. It is further held that 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 two classes created by the State. Article 14 prohibits class legislation but does not forbid reasonable classification.
28. In the petitions at hand, it has been argued on behalf of the petitioners that they (petitioners) and other exempted category 3(ii) are not distinct, rather form one group, hence denial of benefit of Exemption is not based upon intelligible differentia, rather creates class within class, which is neither permissible nor there is any relation between such classification and object sought to be achieved.
29. Hon'ble Apex Court in Budhan Chaudhary & Ors. vs. State of Bihar, AIR 1955 SC 191, has held that by now it is well settled that Article 14 forbids class legislation but not reasonable classification for the purposes of legislation. It has been held in this judgment that 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. It is also held that ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 37 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.
30. Hon'ble Apex Court in S. Seshachalam and Ors. vs. Chairman, Bar Council of T.N. & Ors, (2014) 16 SCC 72, has categorically held that Article 14 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 not 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. Article 14 does not apply where equals and unequals are treated differently. 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 whom stand in the same relation to the privilege granted and between those on whom the privilege is conferred and the persons not so favoured, no reasonable distinction or substantial difference can be found justifying the inclusion of one and exclusion of the other from such privilege.
31. Since my Esteemed Brothers on the Bench have already taken notice of aforesaid law laid down by Hon'ble Apex ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 38 Court on the issue at hand, it is not necessary for me to elaborate on or deal with the issue at hand by referring to more judgments.
.
The decision of the respondent-State to withdraw benefit of Exemption, which was otherwise earlier available to the petitioners, does not appear to be based upon intelligible differentia and certainly amounts to creation of class within a class, which is legally not permissible. There appears to be no reasonable rationale between such classification and the object sought to be achieved.
32. When, for the first time, such benefit of exemption came to be extended to the category of petitioners, object sought to be achieved while introducing benefit of exemption from passing two examinations, out of four from the schools situate in Himachal Pradesh, was to provide relief and succour to those candidates, who were compelled to reside/live outside the State on account of employment of their parents, be it in government sector or private sector. It is not in dispute that benefit of Exemption is only available to bonafide Himachalis, who, on account of their employment, reside outside the State of Himachal Pradesh.
Probably, when such decision to provide Exemption was taken, it was clear in the mind of the policy makers that children of those persons, who are bonafide Himachalis but are compelled to live outside the State on account of employment of their parents, should not be deprived of benefit of State quota, while seeking admission in MBBS/BDS courses. That is why, for the first time, in the Academic Session 2013-14, benefit of Exemption was provided to children of ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 39 bonafide Himachalis, who reside /live outside the State on account of their employment in government sector and private sector or .
private occupation. Suddenly, in the year 2018, decision is taken by respondent-State that benefit of exemption shall only be available to children of bonafide Himachalis, who live/reside out of State due to their service in Central Government/UT's/ other State Governments or autonomous bodies/semi-government bodies of Central Government/ UT's/ other State Governments and not to the petitioners', whose parents live/reside out of the State on account of their employment in private sector/occupation. Reason assigned for withdrawal of benefit of such exemption from the wards of persons residing outside the State on account of employment in private sector is not based upon any rationale, as has been noticed herein above. Prospectus Review Committee, while recommending withdrawal of benefit of exemption from category 3(iv), has only observed that with this exemption almost every bonafide Himachali is exempted from schooling in the State, which effectively would mean that all bonafide Himachalis are eligible for admission, making schooling condition infructuous. As has been held by Hon'ble Apex Court in the judgments referred to supra that Article 14 forbids class legislation but not reasonable classification for the purpose of legislation. But, in the case at hand, there is no reasonable classification so far extending of benefit of Exemption to category 3(ii) is concerned, which by all means is akin and similar to the category of wards, whose parents are residing out of State on ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 40 account of their employment in private sector. It has been held by Hon'ble Apex Court that classification must be founded on .
intelligible differentia, which distinguishes persons or things that are grouped together from others left out of the group but, unfortunately, in the case at hand, decision of the respondent-State to withdraw benefit of exemption from the category of students, whose parents live/reside outside State of Himachal Pradesh on account of their employment in private sector, is not only arbitrary but also not based upon intelligible differentia. As has been observed, object to grant the Exemption is /was to provide succour/relief to those students/children, whose parents are working outside the State of Himachal Pradesh on account of their employment, be it in Government sector or private sector and no discrimination, if any, can be made on the ground that candidates, whose parents live outside the State of Himachal Pradesh on account of their government service are eligible for benefit of exemption, whereas, students, whose parents live /reside outside State of Himachal Pradesh on account of employment in private sector, are not eligible.
33. True it is that, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things and the courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case but classification is justified if it is not palpably arbitrary as has been held by Hon'ble Apex Court in National Council for ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 41 Teacher Education and others vs. Shri Shyam Shiksha Prashikshan Sansthan and Ors., (2011) 3 SCC 238.
.
34. Hon'ble Apex Court in the aforesaid judgment has further held that principle underlying the guarantee of Article 14 is not that same rules or laws 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 similarly circumstanced persons shall be treated alike both in privileges conferred and liabilities imposed.
Equal laws should be applied to all in the same situation and there should be no discrimination between one person and the other, if as regards the subject matter of the legislation their position is substantially the same.
35. In the aforesaid judgment, Hon'ble Apex Court has categorically held that classification must not be arbitrary but must be rational and 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 i.e. (1) classification must be founded on intelligible differentia, which distinguishes those that are grouped together from others left out and (2) that differentia must have a rational relation with the object sought to be achieved by the Act.
::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 4236. Object sought to be achieved by introducing provision of Exemption is/was not only to provide benefit of exemption to the .
Himachali students, who seek admission to MBBS/BDS courses in the colleges situate in the State but prime object of the same is/was to provide equal opportunity to those bonafide Himachali students, who on account of service of their parents, be it in Government or private sector are/were compelled to study in schools outside the State. Himachali students, who otherwise live or reside within the State of Himachal Pradesh are neither required to avail remedy of exemption from passing two examinations from the State of Himachal Pradesh nor they fall in that category because simply on account of their having studied in Himachal Pradesh and having passed two examinations from the schools situate in Himachal Pradesh, they are entitled to appear or compete for admission to MBBS/BDS courses in the State of Himachal Pradesh after having passed NEET.
37. At the cost of repetition, it may be stated that Article 14 forbids class legislation but does not forbid reasonable classification for the purpose of legislation, but as has been observed in the cases referred to herein above, classification must be founded on intelligible differentia which distinguishes those that are grouped together from others left out and that differentia must have a rational relation with the object sought to be achieved by the Act. In the case at hand, prayer made on behalf of the petitioners is not to provide them reservation but they are aggrieved of the action of ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 43 respondents, whereby benefit of Exemption, which was available to them prior to issuance of prospectus for Academic Session 2018-19, .
stands withdrawn. Though this Court is in agreement with the arguments advanced by the learned Advocate General that respondent-State being a policy-maker, can exclude or include any category in the interest of State, but, definitely, no discrimination can be made while making such classification. In the case at hand, benefit of exemption is made available to one category of students, who, by all means, are akin to students, whose parents are residing outside State of Himachal Pradesh on account of their employment in private sector. Classification, if any, done by the State is required to be founded on intelligible differentia, which distinguishes those that are grouped together from others left out and must have a rational relation with the object sought to be achieved by the Act.
38. This Court is not in agreement with the argument advanced by Mr. Ashok Sharma, learned Advocate General that the prime object sought to be achieved is to train doctors well conversant with the geographical and climatic conditions in the State of Himachal Pradesh because question of training doctors from colleges situate in State of Himachal Pradesh would arise later, whereas question of exemption from passing two examinations relates to or deals with pre-admission stage. Hence, prime object, if any, sought to be achieved by respondents by introducing scheme of benefit of exemption from passing two examinations is/was only to provide equal opportunity of admission ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 44 in medical/dental colleges situate in the State of Himachal Pradesh to such students/children who live or reside in the State of .
Himachal Pradesh not by their choice but because of employment of their parents, be it in government sector or private sector.
39. Petitioners in the present petitions and other exempted category 3(ii), being one and the same form one group hence, denial of benefit of exemption to the petitioners can not be said to be based upon intelligible differentia. It amounts to creation of class within class and as such decision of the State can not be said to be free from arbitrariness and discrimination. There is nothing placed on record from where it can be inferred that the petitioners and persons falling under exempted category 3(ii) are distinct and separate and there is a reasonable nexus with the object sought to be achieved by deletion of category 3(iv).
40. Though, Mr. Ashok Sharma, learned Advocate General made a serious attempt to persuade this Court to agree with his contention that classification is based upon various considerations like topography of State, socio-economic conditions of its people, scarcity of good schools, tutors and coaching centres for the students studying in schools situate in the State, but this Court is not convinced with the aforesaid arguments of learned Advocate General. To substantiate his aforesaid argument, Mr. Ashok Sharma, learned Advocate General further argued that decision of the respondent-State to withdraw benefit of exemption from petitioners falling under category 3(iv) shall provide a level playing ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 45 field to the candidates of Himachal Pradesh, but, I am afraid that aforesaid argument advanced by Mr. Ashok Sharma, learned .
Advocate General is tenable because it is not in dispute that benefit of Exemption is still available to other category i.e. children/students of persons retired/working under Central Government / other State Governments/ UTs and their autonomous bodies. Mr. Ashok Sharma, learned Advocate General argued that the petitioners are being benefited by better facilities of educational institutions because they are residing outside the State, but, aforesaid argument/reasoning advanced by Mr. Ashok Sharma, learned Advocate General can not be termed to be reasonable and plausible explanation as far as exclusion of petitioners from the categories otherwise entitled to benefit of exemption is concerned. There can not be any dispute that children of persons working under/retired from Central Government/ other State Governments/ UT's etc. are also benefited by better facilities of educational institutions because they are residing outside the State and as such, there is no reasonable classification, as has been done in the present case by respondent-State by excluding category 3(iv) as a whole from the categories otherwise entitled to avail benefit of exemption from schooling condition.
41. Careful perusal of Clause 3 of Part IV(A) of prospectus for Academic Session 2018-19 provides that children of serving/retired employees of Central Government/ UT's and other State Governments and children of employees of autonomous ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 46 bodies, semi-government bodies of Central Government/UT's and other State Governments, apart from children of employees of .
Himachal Pradesh Government undertakings, autonomous bodies, wholly owned or controlled by Himachal Pradesh Government, shall be entitled to the benefit of exemption from passing two examinations out of four from the schools situate in the State of Himachal Pradesh. Even retired employees of Central Government/ UT's and other State Governments, who after their retirement may have settled outside the State of Himachal Pradesh, have been held entitled to aforesaid benefit of exemption. Though this Court is fully convinced that there can not be any classification on the ground of employment either in government sector or private sector but, even if, for the sake of arguments, it is accepted that decision to withdraw benefit of exemption from petitioners' category has been taken to provide level playing field to the candidates of Himachal Pradesh, it is not understood that how children belonging to State of Himachal Pradesh or living within the State can be said to have facilities at par with the children living outside the State of Himachal Pradesh on account of service of their parents under Central Government/UT's or other State Governments.
42. Interestingly, children of bonafide Himachalis, who are in government service in any part of the country, be it Central Government, UT's or other State Government have been held entitled for benefit of exemption, whereas petitioners have not been allowed the benefit of exemption on the ground that children of ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 47 bonafide Himachalis, who reside in Himachal are not benefited by better educational facilities in comparison to category 3(iv), which .
reasoning is absurd and not based upon intelligible differentia.
Once benefit of exemption has been made available to other categories of children, whose parents are employees of Central Government/UT's and other State Governments, argument advanced by the respondent-State that decision has been taken to withdraw benefit of exemption from category 3(iv) to provide level playing field, is not tenable being fallacious.
43. Had respondent-State decided to withdraw benefit of Exemption from all the categories as prescribed under Clause 3 of Part IV(A), argument advanced with regard to providing of level playing field could be said to be tenable but, in the case at hand, respondent-State has created class within class to extend benefit of exemption to one category of students i.e. children of parents retired /working under Central Government/UT's/ other State Governments, which is definitely similar and akin to the category of persons residing outside State of Himachal Pradesh on account of their employment in private sector.
44. Otherwise also, I am unable to lay my hand to any document adduced on record by the respondents-State suggestive of the fact that decision to withdraw benefit of exemption available to the category of petitioners was taken on aforesaid grounds, rather, decision, if any, is taken on the objection of the Director, Medical Education, Himachal Pradesh, who otherwise had been ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 48 opposing this since the Academic Session 2013-14. Exemption available to the category of petitioners stands withdrawn on the .
ground that this exemption would effectively mean that all bonafide Himachalis are entitled for admission, making schooling condition infructuous.
45. True, it may be that Director, Medical Education at the time of inclusion of category 3(iv) may have opposed the move but it is a matter of record that such exemption remained available to category 3(iv) till the Academic Session 2017-18 alongwith other category i.e. children of employees of Central Government/UT's/ other State Governments etc. There is no material on record suggestive of the fact that inclusion of category 3(iv) was ever objected on the ground that they are not similarly situate to the exempted category 3(ii), rather exclusion of the category of persons employed in private sector for the Academic Session 2018-19 is on flimsy grounds, which in no manner suggests that aforesaid persons can not be granted benefit as is available to category 3(ii).
Category of wards of persons residing outside the State of Himachal Pradesh on account of their employment in private sector is similarly situate to category of children of employees working in government/public sector and they are on same footing, as such is an inseparable class for the purpose of considering eligibility of candidates for admission.
46. Hon'ble Apex Court in Deepak Sibal vs. Punjab University (1989) 2 SCC 145, has also held that Article 14 forbids ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 49 class legislation but not reasonable classification. Whether classification is permissible under Article 14 or not, two conditions .
must be fulfilled i.e. (1) classification must be on the basis of intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) that differentiation must have a rational nexus sought to be achieved in the legislation in question.
47. In the aforesaid judgment, it has been held that in order to consider question as to reasonableness of the classification, it is necessary to take into account objectives for said classification, if the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable. It would be apt to take note of following paragraphs of judgment rendered by Hon'ble Apex Court in Deepak Sibal (supra) :
"9. It is now well settled that Article 14 forbids class legislation, but does not forbid reasonable classification. 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.
10. By the impugned rule, a classification has been made for the purpose of admission to the evening classes. The question is whether the classification is a reasonable classification within the meaning of Article 14 of the Constitution. 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. It has been averred in the written statement of Dr. Balram Kumar Gupta, Chairman, Department of Laws, Punjab University, the respondent No. 2, filed in the High Court, that the object of starting evening classes was to provide education to bona fide employees who could not attend the morning classes on account of their employment. The object, therefore, was to accommodate bona fide employees in the evening classes, as ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 50 they were unable to attend the morning classes on account of their employment. Admission to evening classes is not open to the employees in general including private sector employees, but it is restricted to regular employees of .
Government/Semi-Government institutions etc., as mentioned in the impugned rule. In other words, the employees of Government/Semi-Government institutions etc. have been grouped together as a class to the exclusion of employees of private establishments.
14. It is difficult to accept the contention that the Government employees or the employees of Semi- Government and other institutions, as mentioned in the impugned rule, stand on a different footing from the employees of private concerns, in so far as the question of admission to evening classes is concerned. It is true that the service conditions of employees of Government/Semi- Government institutions etc, are different, and they may have greater security of service, but that hardly matters for the purpose of admission in the evening classes. The test is whether the employees of private establishments are equally in a disadvantageous position like the employees of Government/Semi-Government institutions etc. in attending morning classes. There can be no doubt and it is not disputed that both of them stand on an equal footing and there is no difference between these two classes of employees in that regard. To exclude the employees of private establishments will not, therefore, satisfy the test of intelligible differentia that distinguishes the employees of Government/Semi-Government institutions etc. grouped together from the employees of private establishments. It is true that a classification need not be made with mathematical precision but, if there be little or no difference between the persons or things which have been grouped together and those left out of the group, in that case, the classification cannot be said to be a reasonable one.
15. It is, however, submitted on behalf of the respondents that the employees of private establishments have been left out as it is difficult for the University to verify whether or not a particular candidate is really a regular employee and whether he will have a tenure for at least three years during which he will be prosecuting his studies in the Three-Year LL.B. Degree Course. It is submitted that in making the classification, the surrounding circumstances may be taken into account. In support of that contention, much reliance has been placed on the decision of this Court in Shri Ram Krishna Dalmia v. Justice S.R. Tendolkar1. In that case, it has been observed by Das, C.J. that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 51 constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. It follows from the .
observation that 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 subserving the object sought to be achieved. In the instant case, the circumstances which have been relied on by the respondents, namely, the possibility of production by them of bogus certificates and insecurity of their services are not, in our opinion, such circumstances as will justify the exclusion of the employees of private establishments from the evening classes.
20. In considering the reasonableness of classification from the point of view of Article 14 of the Constitution, the Court has also to consider the objective for such classification. If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable. In the instant case, the foregoing discussion reveals that the classification of the employees of Government/Semi-Government institutions etc. by the impugned rule for the purpose of admission in the evening classes of Three-Year LL.B. Degree Course to the exclusion of all other employees, is unreasonable and unjust, as it does not subserve any fair and logical objective. It is, however, submitted that classification in favour of Government and public sector is a reasonable and valid classification. In support of that contention, the decision in Hindustan Paper Corpn. Ltd. v. Government of Kerala4, has been relied on by the learned Counsel for the respondents. In that case, it has been observed that as far as Government undertakings and companies are concerned, it has to be held that they form a class by themselves, since any project that they may make would in the end result in the benefit to the members of the general public. The Government and public sector employees cannot be equated with Government undertakings and companies. The classification of Government undertakings and companies may, in certain circumstances, be a reasonable classification satisfying the two tests mentioned above, but it is difficult to hold that the employees of Government/Semi-Government institutions etc., as mentioned in the impugned rule, would also constitute a valid classification for the purpose of admission to evening classes of Three-Year LL.B. Degree Course. The contention in this regard, in our opinion, is without any substance.
23. The principle laid down in Chitra Ghosh's case5 has been reiterated by this Court in a later decision in D.N. ::: Downloaded on - 02/08/2018 22:58:31 :::HCHP 52 Chanchala v. State of Mysore6. It has been very clearly laid down by this Court that Government colleges are entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, .
provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. Thus, it is now well established that a classification by the identification of a source must not be arbitrary, but should be on a reasonable basis having a nexus with the object sought to be achieved by the rules for such admission."
48. Most importantly, in Deepak Sibal (supra) Hon'ble Apex Court held that classification of employees of government
49.
r to sector and private sector is impermissible in law for the purpose of deciding eligibility for admission.
If the aforesaid judgment rendered by the Hon'ble Apex Court is perused carefully, Hon'ble Apex Court, while dealing with contention of the University that Government employees or employees of same Government or other institutions, as mentioned in the impugned Rules stand on different footing from the employees of private concerns, observed that it is true that service conditions of government /semi-government institutions are different and they may have greater security of service but that hardly matters for the purpose of admission in the evening classes.
The test is whether both, employees of private establishments and Government/Semi-Government institutions etc. are equally in a disadvantageous position in attending morning classes. There can be no doubt that both of them stand on an equal footing and there is no difference between these two classes of employees in that regard. To exclude the employees of private establishments will not, ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 53 therefore, satisfy the test of intelligible differentia that distinguishes the employees of Government/Semi-Government institutions etc., .
grouped together from the employees of private establishments.
50. Hon'ble Apex Court, in judgment supra, held that it is true that a classification need not be made with mathematical precision but, if there be little or no difference between the persons or things which have been grouped together and those left out of the group, in that case, the classification cannot be said to be reasonable one. If cases of the petitioners are examined in light of aforesaid judgment rendered by Hon'ble Apex Court, employees of private sector are equally in a disadvantageous position like employees of government institutions because both are residing out of the State of Himachal Pradesh on account of their service and as such to exclude category of persons living outside the State on account of employment in private sector from the category, to which otherwise benefit of exemption is available, shall not satisfy the test of intelligible differentia that distinguishes employees of government/ semi-government institutions, grouped together from the employees of private establishments. In the case at hand also, there is no difference between petitioners and persons of other category, which have been grouped together for availing benefit of exemption and as such classification made by respondents can not be said to be reasonable one.
51. Hence, this Court has no hesitation to conclude that decision of the respondent-State to exclude those petitioners, whose ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 54 parents are residing outside the State on account of employment in private sector from availing benefit of exemption from passing two .
examinations out of four from the State, which is otherwise available to the students/candidates, whose parents reside outside the State on account of their service in government or public sector is not based upon intelligible differentia and has no reasonable nexus with the object sought to be achieved and same suffers from arbitrariness. Children of persons, who live or reside outside the State of Himachal Pradesh on account of their employment in private sector also deserve to be extended benefit of exemption which is made available to the children of government employees serving outside the State.
52. Though another argument having been advanced by Mr. Ashok Sharma, learned Advocate General that parents of petitioners are serving/residing outside the State on their own choice and as such, they can not claim benefit of exemption at par with persons of other category, who reside or live outside the State of Himachal Pradesh on account of their service, need not be dealt with by this Court in view of categorical findings returned in paragraphs supra, however, it may be noticed that no material whatsoever has been placed on record by respondent-State to substantiate aforesaid argument. Though none of the parties, be it petitioners or respondent-State made available on record data, if any, to demonstrate that parents of petitioners category are residing outside the State of Himachal Pradesh on their own or out of ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 55 compulsion, but given the topography and limited resources of State, this Court can definitely take judicial note of the fact that .
government as well as private jobs in the State are very limited. It is also not in dispute that there are many fields, where State has no scope and as such, bonafide Himachalis having acquired qualifications in various spheres are compelled to take up jobs outside the State. Mr. Ashok Sharma, learned Advocate General was unable to dispute the fact that in the last one decade, majority of appointments in the State of Himachal Pradesh have been made on contract basis that too on a fixed salary. There is no industry in the State which provides sizeable employment to the bonafide Himachalis.
53. Pharmaceutical industry, which has come up in the State in a big way, though has provided jobs to local residents but even it (Pharmaceutical industry) has no jobs for the skilled category and as such, bonafide Himachalis, who are well qualified having acquired qualifications/degrees in various trades are compelled to take up private jobs outside the State. Otherwise also, in modern era, majority of jobs are available in Information Technology (IT) sector, scope of which is negligible in the State and as such, argument of Mr. Ashok Sharma, learned Advocate General can not be accepted that parents of petitioners have taken up jobs in private sector outside State on their own choice, rather they are compelled to take up jobs in private sector out of State due to paucity of government or private jobs in the State.
::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 5654. Now, this Court would be dealing with another argument of Mr. Ashok Sharma, learned Advocate General that the .
decision of the respondent-State can not be interfered with by this Court being a policy decision. Learned counsel representing the parties placed reliance upon various judgments passed by Hon'ble Apex Court as well as this court in support of their contentions but before ascertaining correctness of aforesaid submissions having been made by the learned Advocate General, it would be profitable to take notice of judgment rendered in Ranjan Singh v. State of Himachal Pradesh AIR 2016 HP 101, wherein Division Bench of this Court taking note of various pronouncements of Hon'ble Apex Court has held that it cannot be doubted that the primary and central purpose of judicial review of the administrative action is to promote good administration. It is to ensure that administrative bodies act efficiently and honestly to promote the public good. They should operate in a fair, transparent, and unbiased fashion, keeping in forefront the public interest. Division Bench of this court further held that scope of judicial review has expanded radically and it now extends well beyond the sphere of statutory powers to include diverse forms of 'public' power in response to the changing architecture of the Government. It is further held that courts may not interfere with exercise of discretion merely because they disagree with the decision or action in question; instead, courts intervene only if some specific fault can be established for example, ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 57 if the decision so reached is procedurally unfair. It would be apt to take note of following paragraphs of the aforesaid judgment:
.
"12. This Court in CWP No. 621 of 2014, titled Nand Lal and another Vs. State of H.P., reported in 2014(2) HLR (DB) 982, was dealing with identical issue, wherein the petitioners had called in question the decision made by the Government, whereby it decided to open a degree college at Diggal, District Solan, instead of Ramshaher (Nalagarh), District Solan and it was held that since it was a policy decision, the same was not open to judicial review. It is apt to reproduce the following observations:- "4. Heard. The moot question for consideration in this writ petition is-whether the petitioners can question the decision made by the Government for opening a Government Post Graduate College at Diggal, District Solan?
5. During the process of consideration of the issue, the residents of various Gram Panchayats of Ramshehar area made resolution(s) and represented to the Government for sanctioning and opening a Degree College at Ramshehar (Nalagarh), District Solan, instead of at Diggal, District Solan. After considering all the documents and keeping in view the policy-norms, governing the field, the respondents made decision to open the said college at Diggal.
6. The petitioners are aggrieved for the reason that the State Government has not made decision in accordance with the facts, their contentions read with norms and policy.
7. It is a beaten law of land that Government decision and policy cannot be subject matter of a writ petition, unless its arbitrariness is shown in the decision making process.
8. It is averred that Panchayats of the area of Ramshehar have made demand for sanctioning and opening the said college at the said place, which is centrally located and is feasible also.
9. The Apex Court in Sidheshwar Sahakari Sakhar Karkhana Ltd. Vs. Union of India and others, 2005 AIR SCW 1399; (AIR 2005 SC 1527), has laid down the guidelines and held that Courts should not interfere in policy decision of the Government, unless there is arbitrariness on the face of it.
10. The Apex Court in a latest decision reported in Manohar Lal Sharma Vs. Union of India and another, (2013) 6 SCC 616: (AIR 2013 SC (Civil) 1855), also held that interference by the Court on the ground of efficacy of the policy is not permissible. It is apt to reproduce paragraph 14 of the said decision as under:
"14. On matters affecting policy, this Court does not interfere unless the policy is unconstitutional or ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 58 contrary to the statutory provisions or arbitrary or irrational or in abuse of power. The impugned policy that allows FDI up to 51% in multi-brand retail trading does not appear to suffer from any of these vices."
.
14. The Apex Court in the case titled as Mrs. Asha Sharma v. Chandigarh Administration and others, reported in 2011 AIR SCW 5636 has held that policy decision cannot be quashed on the ground that another decision would have been more fair, wise, scientific or logical and in the interest of society. It is apt to reproduce para 10 herein:
"10. The Government is entitled to make pragmatic adjustments and policy decisions, which may be necessary or called for under the prevalent peculiar circumstances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logic. The principle of reasonableness and non-arbitrariness in governmental action is the core of our constitutional scheme and structure. Its interpretation will always depend upon the facts and circumstances of a given case. Reference in this regard can also be made to Netai Bag v. State of West Bengal [(2000) 8 SCC 262 : (AIR 2000 SC 3313)]."
15. It appears that the respondents have examined all aspects and made the decision. Thus, it cannot be said that the decision making process is bad. The Court cannot sit in appeal and examine correctness of policy decision. The Apex Court in the case titled as Bhubaneswar Development Authority and another v. Adikanda Biswal and others, reported in (2012) 11 SCC 731: 2012 AIR SCW 3083 laid down the same principle. It is apt to reproduce para 19 of the judgment herein:
"19. We are of the view that the High Court was not justified in sitting in appeal over the decision taken by the statutory authority under Article 226 of the Constitution of India. It is trite law that the power of judicial review under Article 226 of the Constitution of India is not directed against the decision but is confined to the decision making process. The judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. The Court confines itself to the question of legality and is concerned only with, whether the decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers."::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 59
13. Similar reiteration of law thereafter are found in decisions rendered by this Court in CWP No. 4625 of 2012, titled as Gurbachan Vs. State of H.P. and others, decided on 15.7.2014, CWP No. 3862 of 2014, (reported in AIR 2015 .
(NOC) 1093 (HP)). titled as Surinder Kumar Vs. State of H.P. and others, decided on 15.7.2015 and yet again in a recent decision in CWP No. 4044 of 2015, titled as Gramin Janta Kalyan Samiti, Kuthera Vs. State of H.P. and others, decided on 28.3.2016.
14. The scope of judicial review and its exclusion was a subject matter of a recent decision by three Judges of the Hon'ble Supreme Court in Census Commissioner and others vs. R. Krishnamurthy (2015) 2 SCC 796 and it was held that it is not within the domain of Courts to embark upon enquiry as to whether particular public policy is wise and acceptable or whether better policy could be evolved, Court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded on ipse dixit offending Article 14. It was held as under:
"23. The centripodal question that emanates for consideration is whether the High Court could have issued such a mandamus commanding the appellant to carry out a census in a particular manner.
24. The High Court has tried to inject the concept of social justice to fructify its direction. It is evincible that the said direction has been issued without any deliberation and being oblivious of the principle that the courts on very rare occasion, in exercise of powers of judicial review, would interfere with a policy decision.
25. Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue Notification regarding the manner in which the census has to be carried out and the Central Government has issued Notifications, and the competent authority has issued directions. It is not within the domain of the Court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy making by adding something to the policy by way of issuing a writ of mandamus. There the judicial restraint is called for remembering what we have stated in the beginning. The courts are required to understand the policy decisions framed by the Executive. If a policy decision or a Notification is arbitrary, it may invite the frown of Article 14 of the Constitution. But when the Notification was not under assail and the same ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 60 is in consonance with the Act, it is really unfathomable how the High Court could issue directions as to the manner in which a census would be carried out by adding certain aspects. It is, in fact, issuance of a direction for .
framing a policy in a specific manner.
26. In this context, we may refer to a three-Judge Bench decision in Suresh Seth V. Commr., Indore Municipal Corporation, (2005) 13 SCC 287: (AIR 2006 SC
767) wherein a prayer was made before this Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956 so that a person may be debarred from simultaneously holding two elected offices, namely, that of a Member of the Legislative Assembly and also of a Mayor of a Municipal Corporation.
Repelling the said submission, the Court held: (SCC pp.
288-89, para 5): (p. 68, para 5 of AIR) "5..... In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. That apart this Court cannot issue any direction to the legislature to make any particular kind of enactment.
Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees Welfare Assn. v. Union of India (1989) 4 SCC 187:(AIR 1980 SC 334)(SCC para
51) it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. This view has been reiterated in state of J & K v A.R. Zakki, 1992 Supp (1) SCC 548:(AIR 1992 SC 1546). In A.K. Roy v. Union of India, (1982) 1 SCC 271:(AIR 1982 SC 710), it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature."
27. At this juncture, we may refer to certain authorities about the justification in interference with the policy framed by the Government. It needs no special emphasis to state that interference with the policy, though is permissible in law, yet the policy has to be scrutinized with ample circumspection.
28. In N.D. Jayal and Anr. V. Union of India & Ors.(2004) 9 SCC 362: (AIR 2004 SC 867), the Court has observed that in the matters of policy, when the Government takes a decision bearing in mind several aspects, the Court should not interfere with the same. In Narmada Bachao Andolan V. Union of India (2000) ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 61 10 SCC 664: (AIR 2000 SC 3751), it has been held thus:
(SCC p. 762, para 229)(p. 827, para 255 of AIR) "229. "It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into .
the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution."
29. In this context, it is fruitful to refer to the authority in Rusom Cavasiee Cooper V. Union of India, (1970) 1 SCC 248 : (AIR 1970 SC 564), wherein it has been expressed thus: (SCC p. 294, para 63): (p. 601, para 72 of AIR).
"63. .....It is again not for this Court to consider the relative merits of the different political theories or economic policies... This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of Parliament in enacting a law".
30. In Premium Granites V. State of Tamil Nadu, (1994) 2 SCC 691: (AIR 1994 SC 2233), while dealing with the power of the courts in interfering with the policy decision, the Court has ruled that: (SCC p.715, para 54): (P.249 para 52 of AIR) "54. it is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy could be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right."
31. In M.P. Oil Extraction and Anr. V. State of M.P. & Ors.(1997) 7 SCC 592: (AIR 1998 SC 145), a two-Judge Bench opined that: (SCC p. 611, para 41): (P. 156, para 41 of AIR) "41. ...The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 62 constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State."
.
32. In State of M.P. V. Narmada Bachao Andolan & Anr.(2011) 7 SCC 639: (AIR 2011 SC 1989), after referring to the State of Punjab V. Ram Lubhaya Bagga (1998) 4 SCC 117: ( AIR 1998 SC 1703), the Court ruled thus: (SCC pp. 670-71, para 36): (P. 2004, para 34 of AIR).
"36. The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies [pic] are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power. (See Ram Singh Vijay Pal Singh v. State of U.P., (2007) 6 SCC 44, rVillianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561: (2010 AIR SCW 4123) and State of Kerala v. Peoples Union for Civil Liberties, (2009) 8 SCC 46.)"
33. From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the Court is not expected to sit as an appellate authority on an opinion."
15. Notably, scope of judicial review was yet again subject matter of a very recent decision rendered by the Hon'ble Supreme Court in Center for Public Interest Litigation Vs. Union of India W.P.(C) No. 382 of 2014 (reported in AIR 2016 SC 1777), decided on 8.4.2016, wherein the spectrum usage charges granted to various telecom companies by the Government of India was questioned and it was held that unless a policy decision was found to be arbitrary, based on irrelevant considerations or malafide or against statutory provisions, the same does not call for any interference by the Court in exercise of powers of judicial review. It is apt to reproduce the following observations:-
"19. Such a policy decision, when not found to be arbitrary or based on irrelevant considerations or mala fide or against any statutory provisions, does not call for any interference by the Courts in exercise of power of ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 63 judicial review. This principle of law is ingrained in stone which is stated and restated time and again by this Court on numerous occasions. In Jal Mahal Resorts (P) Ltd. v. K.P. Sharma, 2014 8 SCC 804 :(AIR 2015 SC .
(Supp)158), the Court underlined the principle in the following manner:
"116. From this, it is clear that although the courts are expected very often to enter into the technical and administrative aspects of the matter, it has its own limitations and in consonance with the theory and principle of separation of powers, reliance at least to some extent to the decisions of the State authorities, specially if it is based on the opinion of the experts reflected from the project report prepared by the technocrats, accepted by the entire hierarchy of the State administration, acknowledged, accepted and approved by one Government after the other, will have to be given due credence and weightage. In spite of this if the court chooses to overrule the correctness of such administrative decision and merits of the view of the entire body including the administrative, technical and financial experts by taking note of hair splitting submissions at the instance of a PIL petitioner without any evidence in support thereof, the PIL petitioners shall have to be put to strict proof and cannot be allowed to function as an extraordinary and extra-judicial ombudsmen questioning the entire exercise undertaken by an extensive body which include administrators, technocrats and financial experts. In our considered view, this might lead to a friction if not collision among the three organs of the State and would affect the principle of governance ingrained in the theory of separation of powers. In fact, this Court in M.P. Oil Extraction v. State of M.P., (1997) 7 SCC 592 at p. 611: (AIR 1998 SC 145) has unequivocally observed that:
"41. The power of judicial review of the executive and legislative action must be kept within the bounds of constitutional scheme so that there may not be any occasion to entertain misgivings about the role of judiciary in outstepping its limit by unwarranted judicial activism being very often talked of in these days. The democratic set-up to which the polity is so deeply committed cannot function properly unless each of the three organs appreciate the need for mutual respect and supremacy in their respective fields.
117. However, we hasten to add and do not wish to be misunderstood so as to infer that howsoever gross or abusive may be an administrative action or a decision which is writ large on a particular activity at the instance of the State or any other authority connected with it, the Court should remain a passive, inactive ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 64 and a silent spectator. What is sought to be emphasised is that there has to be a boundary line or the proverbial laxman rekha while examining the correctness of an administrative decision taken by the .
State or a central authority after due deliberation and diligence which do not reflect arbitrariness or illegality in its decision and execution. If such equilibrium in the matter of governance gets disturbed, development is bound to be slowed down and disturbed specially in an age of economic liberalisation wherein global players are also involved as per policy decision."
20. Minimal interference is called for by the Courts, in exercise of judicial review of a Government policy when the said policy is the outcome of deliberations of the technical experts in the fields inasmuch as Courts are not well-equipped to fathom into such domain which is left to the discretion of the execution. It was beautifully explained by the Court in Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664: (AIR 2000 SC 3757) and reiterated in Federation of Railway Officers Assn. v.
Union of India (2003) 4 SCC 289: (AIR 2003 SC 1344) in the following words:
"12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters."
21. Limits of the judicial review were again reiterated, pointing out the same position by the Courts in England, in the case of G. Sundarrajan v. Union of India [AIR 2013 SC (Supp) 615] [6] in the following manner: 15.1. Lord MacNaughten in Vacher & Sons Ltd. v. London Society of Compositors (1913 AC 107: (1911-13) All ER Rep 241 (HL) has stated:
"... Some people may think the policy of the Act unwise and even dangerous to the community. But a judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction."
15.2. In Council of Civil Service Unions v. Minister for the Civil Service (1985 AC 374, it was held that it is ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 65 not for the courts to determine whether a particular policy or particular decision taken in fulfilment of that policy are fair. They are concerned only with the manner in which those decisions have been taken, if .
that manner is unfair, the decision will be tainted with what Lord Diplock labels as "procedural impropriety".
15.3 This Court in M.P. Oil Extraction v. State of M.P.(1997) 7 SCC 592: (AIR 1998 SC 145) held that unless the policy framed is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is invalid in constitutional or statutory mandate, court's interference is not called for.
15.4 Reference may also be made of the judgments of this Court in Ugar Sugar Works Ltd. v. Delhi Admn. (2001) 3 SCC 635: (AIR 2001 SC 1447), Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal (2007) 8 SCC 418: (AIR 2007 SC (Supp) 1365) and Delhi Bar Assn. v. Union of India (2008) 13 SCC 628. 15.5 (AIR 2009 SC 693).
15.5 We are, therefore, firmly of the opinion that we cannot sit in judgment over the decision taken by the Government of India, NPCIL, etc. for setting up of KKNPP at Kudankulam in view of the Indo-Russian Agreement."
22. When it comes to the judicial review of economic policy, the Courts are more conservative as such economic policies are generally formulated by experts. Way back in the year 1978, a Bench of seven Judges of this Court in Prag Ice & Oil Mills v. Union of India and Nav Bharat Oil Mills v. Union of India, (1978) 3 SCC 459 :(AIR 1978 SC 1296) carved out this principle in the following terms:
"We have listened to long arguments directed at showing us that producers and sellers of oil in various parts of the country will suffer so that they would give up producing or dealing in mustard oil. It was urged that this would, quite naturally, have its repercussions on consumers for whom mustard oil will become even more scarce than ever ultimately. We do not think that it is the function of this Court or of any court to sit in judgment over such matters of economic policy as must necessarily be left to the government of the day to decide. Many of them, as a measure of price fixation must necessarily be, are matters of prediction of ultimate results on which even experts can seriously err and doubtlessly differ. Courts can certainly not be expected to decide them without even the aid of experts."
23. Taking aid from the aforesaid observations of the Constitution Bench, the Court reiterated the words of ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 66 caution in Peerless General Finance and Investment Co. Limited v. Reserve Bank of India, (1992) 2 SCC 343:
(AIR 1992 SC 1033) with the following utterance:
"31. The function of the court is to see that lawful .
authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts."
24. It cannot be doubted that the primary and central purpose of judicial review of the administrative action is to promote good administration. It is to ensure that administrative bodies act efficiently and honestly to promote the public good. They should operate in a fair, transparent, and unbiased fashion, keeping in forefront the public interest. To ensure that aforesaid dominant objectives are achieved, this Court has added new dimension to the contours of judicial review and it has undergone tremendous change in recent years. The scope of judicial review has expanded radically and it now extends well beyond the sphere of statutory powers to include diverse forms of 'public' power in response to the changing architecture of the Government. (See :
Administrative Law: Text and Materials (4th Edition) by Beatson, Matthews, and Elliott) Thus, not only has judicial review grown wider in scope; its intensity has also increased. Notwithstanding the same, "it is, however, central to received perceptions of judicial review that courts may not interfere with exercise of discretion merely because they disagree with the decision or action in question; instead, courts intervene only if some specific fault can be established for example, if the decision was reached procedurally unfair."
25. The raison d'etre of discretionary power is that it promotes decision maker to respond appropriately to the demands of particular situation. When the decision making is policy based judicial approach to interfere with such decision making becomes narrower. In such cases, in the first instance, it is to be examined as to whether policy in question is contrary to any statutory provisions or is discriminatory/arbitrary or based on irrelevant ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 67 considerations. If the particular policy satisfies these parameters and is held to be valid, then the only question to be examined is as to whether the decision in question is in conformity with the said policy."
.
55. Recently, Hon'ble Apex Court in Independent Thought v. Union of India (2017) 10 SCC 800, has held that it is a well settled principle of law that when the constitutional validity of the law enacted by the legislature is under challenge and there is no challenge to the legislative competence, the Court will always raise a presumption of the constitutionality of the legislation. It is further held by Hon'ble Apex Court that the courts are reluctant to strike down laws as unconstitutional unless it is shown that the law clearly violates the constitutional provisions or the fundamental rights of the citizens. It would be apt to take note of following paragraphs of the judgment (supra):
"161. It is a well settled principle of law that when the constitutional validity of the law enacted by the legislature is under challenge and there is no challenge to the legislative competence, the Court will always raise a presumption of the constitutionality of the legislation. The courts are reluctant to strike down laws as unconstitutional unless it is shown that the law clearly violates the constitutional provisions or the fundamental rights of the citizens. The Courts must show due deference to the legislative process.
162. There can be no dispute with the proposition that Courts must draw a presumption of constitutionality in favour of laws enacted by the legislature. In Sub-Divisional Magistrate v. Ram Kali46, this Court observed as follows: (AIR p. 3, para 5) "5......The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds."::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 68
163. Thereafter, in Pathumma & Ors. v. State of Kerala & Ors.47, this Court held that the Court would interfere only when the statute clearly violates the rights of the citizens provided under Part III of the Constitution or where the Act .
is beyond the legislative competence or such similar grounds. The relevant observations are as follows:(SCC p.9, para 6) "6. It is obvious that the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people. The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds. It is for this reason that the Courts have recognised that there is always a presumption in favour of the r constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same..."
164. In State of A.P. v. P. Laxmi Devi48, this Court held thus: (SCC pp. 747-48, paras 66-67) "66. As observed by the Privy Council in Shell Co. of Australia v. Federal Commr. of Taxation49 :(ALL ER p. 680 G-H) '...unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution, it must be allowed to stand as the true expression of the national will..."
67. Hence if two views are possible, one making the provision in the statute constitutional, and the other making it unconstitutional, the former should be preferred vide Kedar Nath Singh v. State of Bihar50. Also, if it is necessary to uphold the constitutionality of a statute to construe its general words narrowly or widely, the court should do so vide G.P. Singh's Principles of Statutory Interpretation, 9th Edn., 2004, p. 497......"
56. Having carefully perused aforesaid exposition of law rendered by Hon'ble Apex Court as well as this Court, it may be safely concluded that even policy decision being taken by State can be tested on the touchstone of Article 14 and if same is found to be ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 69 violative of Article 14, court has power to set aside the same. No doubt, it is well settled that when policy according to which or the .
purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters. Hon'ble Apex Court repeatedly has held that unless a policy decision is found to be arbitrary based on irrational consideration or malafide or against statutory provisions, same does not call for an interference by the Court in exercise of powers of judicial review but if policy decision is found to be arbitrary, based on irrational considerations or malafide or against statutory provisions, court has definite power to interfere and set aside the same.
57. In the case at hand, policy decision taken by the respondent-State is arbitrary, based upon irrational considerations and against the Constitution of India. Constitution provides that equal laws should be applied to all in the same situation and there should not be any discrimination between one person and the other, if as regards the subject matter of legislation, their position is substantially the same. Parents of the petitioners are also compelled to reside outside the State of Himachal Pradesh on account of their employment in private sector and as such, benefit ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 70 of exemption from passing two examinations out of four from the schools situate in the State of Himachal Pradesh can not be .
withdrawn on account of their being employed in private sector, especially when such benefit is made available to other category under Clause 3(ii).
58. Consequently, in view of the detailed discussion made herein above as well as law laid down by Hon'ble Apex Court as also this Court, this Court has no hesitation to conclude that alleged policy decision taken by the respondent-State in withdrawing the benefit of exemption from condition of passing two examinations from the schools situate in the State of Himachal Pradesh affiliated to ICSE/CBSE/HP Board of School Education, from those petitioners, whose parents are residing outside the State of Himachal Pradesh on account of their employment in private sector is arbitrary, discriminatory, unconstitutional and there is no reasonableness in the decision of the respondent-State in withdrawing benefit of exemption from the aforesaid petitioners and allow same to other categories, which in no manner can be said to be different from the category of petitioners as such, decision taken in this regard though a policy decision can not be allowed to sustain.
59. Reference made to me is answered accordingly.
60. Since petitions at hand came to be placed before me on account of divergence of opinion between two esteemed Brothers sitting in the Hon'ble Division Bench, on the point of legality and ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP 71 validity of the decision taken by the respondent-State to withdraw benefit of exemption from condition of passing two examinations .
out of four from the schools situate in the State of Himachal Pradesh from the category of students, whose parents are residing outside State of Himachal Pradesh on account of their employment in private sector, I have adjudicated aforesaid issue only and as such, question, if any, with regard to admission of the persons falling in aforesaid category or only of those persons, who have participated in counselling for Academic Session 2018-19 in pursuance of order dated 29.6.2018 passed by the Hon'ble Division Bench, requires to be decided by the aforesaid Hon'ble Bench.
(Sandeep Sharma) Judge July 31, 2018 vikrant ::: Downloaded on - 02/08/2018 22:58:32 :::HCHP