Rajasthan High Court - Jaipur
Shakti Suman Pareek vs State (Education Medical )Ors on 29 September, 2016
Author: Alok Sharma
Bench: Alok Sharma
1
S.B. Civil Writ Petition No.13544/2016
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
S.B. Civil Writ Petition No.13544/2016
Shakti Suman Pareek son of Shri R.K. Pareek, aged
about 21 years, resident of 887/52, Lohakhan New
Colony, Ajmer, Rajasthan.
...Petitioner.
Versus
1. State of Rajasthan through the Principal Secretary,
Medical Education Department, Government Secretariat, Jaipur.
2. UG Admission Board NEET 2016 through its Chairman,
RUHS College of Dental Sciences & Hospital, Jaipur.
3. Deepak Kumar son of Shri Jagdish through the Principal,
Jhalawar Medical College, Jhalawar, Rajasthan.
...Respondents.
Date of Order-::- 29th, September, 2016
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Tanveer Ahamad, for petitioner.
Mr. S.K. Gupta, AAG for State Mr. M.A. Khan, for respondent/s.
The petitioner is the daughter of an ex-serviceman. Having passed NEET UG (Medical/Dental) Examination 2016, she registered for online counselling to be admitted to MBBS/BDS Courses in Medical/Dental Colleges in the State of Rajasthan against the State Quota seats. She claims reservation under Clause 4 (d) (2) of the NEET UG (Medical/Dental) Counselling 2016 (MBBS/BDS) which reads as 2 S.B. Civil Writ Petition No.13544/2016 under:-
(d)1% seats after excluding the seats of sub clauses (a), (b) are reserved on priority cum merit for t he natural born (not adopted) sons/daughters of Defence personnel (serving/Retired) of Rajasthan Origin, and para military personnel (serving / retired) of Rajasthan origin, horizontally, 50% out of these reserved seats shall be reserved for girls, unfilled seats will be reverted back to boys category.
Priority order for Defence personnel of Rajasthan origin, in consultation with Director, State Soldier Welfare Board Rajasthan, will be as follows:-
1. N.A.
2. Wards of those Disabled in action and boarded out from service/died while in service with death attributable to military service / disabled in service and boarded out with disability attributable to military service. (Certificate Proforma 1 and 2A)
3. N.A.
4. N.A. Priority order for Para-military personnel of Rajasthan origin, in consultation with Director, State Soldier Welfare Board Rajasthan, will be as follows:-
1. Widows/Wards of Gallantry Award winners.
(Certificate Proforma 2C)
2. Widows/Wards of personnel killed in action/ died while in service with death attributable to 3 S.B. Civil Writ Petition No.13544/2016 military service. (Certificate Proforma 1 and 2A)
3. Widows/ Wards of those disabled in action/ disabled in service with disability attributable to Para-Military services (Certificate Proforma 1 and 2A). Widows/ Wards of ex-service men (Certificate Proforma 2B) A notification dated 27.08.2016 also came to be issued under the hand of the Chairman, UG Admission Board NEET 2016, whereby eight seats were declared to be available for the 1% quota seats for the natural Wards of Defence Personnel/Paramilitary Personnel.
The petitioner's case is that her father who worked with the Indian Army was discharged/boarded out with disability attributable to his military service and is being presently granted disability pension. It was submitted that in the circumstances the petitioner ought to have been considered for admission under clause 4 (d) 2 aforesaid in the category of wards of personnel suffering disability and boarded out from service for reasons attributable to military service. It was submitted that in the circumstances the petitioner should have been admitted to a seat in the MBBS course 2016, yet was so denied the seat arbitrary even while others with lower merit have been given the benefit of admission to a seat in MBBS in the quota reserved for defence 4 S.B. Civil Writ Petition No.13544/2016 personnel. It was pointed out that in fact the Director Soldier Welfare Board, Jaipur conveyed to the Chairman, UG Admission Board 2016 vide letter dated 20.9.2016 that the petitioner was fully eligible to be given priority in the quota reserved for defence personnel and had been wrongly denied it on a misinterpretation of clause 4 (d) 2 of the instructions for NEET (UG) (Medical/Dental) Counselling 2016. Hence this petition.
This petition has been opposed by Mr. M.A. Khan appearing for the Chairman, UG Admission Board 2016. It was submitted that as per Clause 4 (d) 2 of the said instruction booklet for MBBS/BDS Examination 2016, 1% seats are indeed reserved for natural born wards for serving or retired defense personnel or paramilitary personnel of Rajasthan origin in consultation with the Director State Soldier Welfare Board, Rajasthan. A nominee of Director State Soldier Welfare Board, Rajasthan remains present for consultation with the counselling Board. It has been submitted that the petitioner's case based on Clause 4 (d) 2 of the instructions booklet for admission into MBBS/BDS courses 2016 is absolutely misconceived as the father of the petitioner was discharged from service under Rule 13 (3) item III (ii) of the Army Rules due to low backache and it is thus evident that he 5 S.B. Civil Writ Petition No.13544/2016 was not be boarded out due to any disability attributable to military service. The petitioner is therefore not eligible for the benefit of the concession which she seeks under Clause 4
(d) (2) of the instruction booklet.
Mr. S.K. Gupta, AAG appearing for the State has also opposed the writ petition. He submitted that for one, the writ petition is deserving of dismissal at the outset, as it has been filed without impleading necessary parties, being at least the one already admitted to last of the eight seats reserved for the wards of military paramilitary's personnel of Rajasthan origin. It was submitted that in terms of the instructions/guidelines for UG Admissions Board, 2016, 1% seats as computed are reserved for wards of defence/paramilitary personnel on priority-cum-merit basis and therefore the importance of merit in the admission is only secondary subsequent to the priority of the candidates being first assessed in the manner set out in Clause 4 (d) (2) in issue. It was submitted that unless the candidate, is a ward of a defence personnel disabled in service and boarded out for reasons of the disability attributable to military service, no benefit of the quota under Clause 4 (d) (2) of the instruction for admission to MBBS/BDS 2016 can be given. It was submitted that a member of the State Soldier Welfare Board 6 S.B. Civil Writ Petition No.13544/2016 attached to the Admission Board is an expert in matter of defence and his view was also ascertained before the petitioner's claim for being treated under Clause 4 (d) (2) was negated.
Heard. Considered.
Clause 4 (d) (2) of the NEET UG (Medical/Dental) Counselling 2016 providing for the quota of 1% seats open for admission to MBBS/BDS 2016, is obviously in the nature of a concession by way of positive discrimination. It is trite that a concession given by way of a quota or otherwise has to be strictly construed as it is evidently an exception to the general rule of right to equality which is otherwise a constitutional imperative. I am of the considered view that the case of the petitioner does not fall within the language of Clause 4 (d) (2) of the instructions/guidelines for NEET UG (Medical/Dental) counselling 2016. The controlling words under Clause 4 (d) (2) are "disability attributable to military service". The disability suffered by defence personnel/paramilitary personnel should thus be connected to the discharge of the military service by him. The question as to whether the disability and the consequential boarding out of a military personnel from service was attributable to military service would have to be tested on the discharge documents of the personnel concerned. The 7 S.B. Civil Writ Petition No.13544/2016 certificates of service qua the petitioner's father R.K. Pareek which has been filed with the writ petition indicates that he was invalidated and boarded out of service by the Medical Board on account of low backache. The certificate aforesaid does not state that the disability of the petitioner's father was attributable to military service. Merely because the petitioner's father was indeed boarded out of service for reasons of invalidity/disability cannot by itself entail a presumption that his disability was attributable to military service. It is well-settled that a presumption cannot be a mere assumption but has to be based on a specific provision therefor in regard thereto. No such provision exists. Nor has it been brought to my notice. I am disinclined to, as I cannot, travel beyond the certificate of the service of the petitioner's father and extrapolate thereon aspects set out in the pension pay order to conclude that the boarding out/discharge of the petitioner's father was for reasons of disability attributable to military service. Pension provisions obtain in their scheme independent of discharge provisions.
An identical issue came up before this Court in the case of Mamta Vs. State of Rajasthan & Ors. in S.B.C.W.P. No. 13790/2015 wherein this Court held that where there was nothing on record to show that a low backache was 8 S.B. Civil Writ Petition No.13544/2016 attributable to military service, it could not be so held by the Court and the benefit of the concession to wards of such a military person could not be allowed on the assumption that her father's boarding out was reasons of disability attributable to military service. (ii) even otherwise it was incumbent upon the Courts to differentiate between the discharge attributable to military service and discharge for reasons of disability flawing from illness aggravated due to military service and (iii) the benefit of a disability under the pension regulations to the military personnel could not be extrapolated for the purpose of determining the question as to whether as a matter of fact the discharge/boarding out from service was for reasons attributable to military service.
Having considered the respective contention of the counsel for the parties and taking into consideration the facts of the case, I am of the considered view that no case is made out at the instance of the petitioner to issue a direction to the Chairman UG Admission 2016 that she should be considered for admission into MBBS/BDS 2016 in terms of priority under Clause 4 (d) (2) of the instructions/guidelines pertaining to NEET (UG) (Medical/Dental) counselling 2016.
The petition is dismissed accordingly.
(ALOK SHARMA), J.
Himanshu Soni/Satyam/Karan