Madras High Court
Puvvala Sujatha (Minor) vs Union Of India (Uoi) And Ors. on 29 September, 1999
Equivalent citations: AIR 2000 MADRAS 234, (2000) WRITLR 496
ORDER P. Shanmugam, J.
1. Both these writ petitions are filed by the same petitioner. In the first writ petition, she has prayed for a direction to the second respondent Director. JIPMER to admit her to the First Year M.B.B.S. Course for the academic year 1999-2000. In the second writ petition, she has prayed for the issue of a writ of certiorarified Mandamus to quash Para No. 3.5.1 of the Prospectus issued by the Director, JIPMER and to set aside the selection of the fourth and fifth respondents to the First year M.B.B.S. Course.
2. Petitioner is a minor represented by her lather. Petitioner's father is working as Deputy Executive Engineer, Public Works Department in Andhra Pradesh. He claims that Yanam is his native place. However, the third respondent Deputy Collector, Yanam refused to issue the Residence Certificate to the petitioner.
3. Petitioner participated in the Entrance Examination held for selection to the M.B.B.S. Course and got 108 marks. Her name is included in the merit list of the Scheduled Caste quota earmarked for Pondicherry Region. Petitioner was directed to appear for an interview with her original certificates. She appeared for the interview and was placed in the fifth rank for the Scheduled Caste Pool, Pondicherry. However, she was not allowed to join the course on the ground that she had not submitted her Residence Certificate. Hence, the above writ petitions.
4. The second respondent has filed a counter-affidavit where it is stated that Jawaharlal Institute of Post-graduate Medical Education and Research (JIPMER) Pondicherry is a Central Government institution financed and administered by the Ministry of Family Welfare, Government of India. This institute is affiliated to Pondi-cherry University. There are 75 seats in the First Year M.B.B.S. Course. For admission in the five categories of students, notification was made in January/February 1999 and 5-5-99 was the last date for receipt of the applications. The entrance examination was held on 6-6-99. Even though some of the candidates did not enclose all the certificates, they were provisionally admitted to appear for the entrance examination. More than 21,000 candidates submitted their applications for admission. As per the provisions of the prospectus, the candidates who have appeared and who will he appearing for the qualifying examination in May, 1999 and whose results have not been declared can also apply for admission if they are otherwise eligible. They will however be admitted to the M.B.B.S. Course only if they produce all the original certificates and satisfy the requirement. The candidates should specify to which category they are applying. Para 3.5.1 of the prospectus defines Pondi-cherry Union Territory residents. In the application submitted by the petitioner on 20-4-99, she had not filled the column under Sl. No. 11 (6) of the application form and at page 2. SI. No. 12(b) petitioner filled the column as April, 1999 (i.e. appearing for the examination in April 1999). The fourth page of the application is neither filled by the applicant nor certified by the authority for her claim to be considered for the Pondicherry reserved seat. Though she had claimed at page 1 against Sl. No 9 petitioner had not enclosed the residence certificates ? with her application. Petitioner had written a letter dated 5-7-99 undertaking to submit her nativity certificate in the prescribed form within a week's time. In the light of her performance in the entrance examination, she was placed at Sl. No. 5 under the Pondicherry Scheduled Caste category subject to vertification of all original certificates and on fulfillment of other requirements as mentioned in the prospectus. In the interview card, it was specifically mentioned that selection is provisional subject to verification. When the candidate and her father were asked about the non-submission of her residence certificate, they have stated that they would submit the same afterwards and requested two weeks time for submission of the certificate and hence, she was considered on the basis of the letter given. She was not issued admission order directing her to pay the admission fees and join the class. Hence the writ petitions.
5. I have heard the counsel for the petitioner and the respondents in extenso. The short question that arises for consideration is whether the petitioner satisfies the eligibility condiction and whether that condition is contrary to law.
6. The JIPMER college is one among the three institutions administered by the Central Government, Ministry of Health and Family Welfare, the other two being at Delhi and Chandigarah. It is stated that the same pattern of admission is being followed in all these three institutions. There are 75 seats available in so far as the JIPMER is concerned. The 75 seats are distributed as follows :
(a) Open Central ..14
(b) Open Scheduled Caste ..8
(c) Open Scheduled Tribe ..4
(d) Pondicherry Genera ..15
(e) Pondicherry Scheduled Caste ..5
(f) Seats to be filled on the basis of Common all India Entrance Test by CBST ..11
(g) Government of India nomina-tion, subject to fulfilment of basic requirements laid down vide para 2.2., 2.3 & 2.3.4 (b) ..18
Total ..
75Clause 3.5.1 which defines the residents of Ponciicherry Union Territory as follows :
"3.5.1 Definition of Pondicherry Union Territory Residents, the 20 seats reserved for Pondicherry General and Pondicherry Scheduled Castes are open to applicants who are Pondicherry Residents provided he/ she is an Indian National and satisfies either of the following two criteria :
(a) Those candidates/their parents residing continuously in the Union Territory of Pondicherry for at least five years immediately proceeding the date of application.
(b) Children of Central/State Government Servants, including employees of Public Sector undertaking under the Central/ State Government, posted and serving in the Union Territory of Pondicherry.
Note : (i) Residence Certificate must be attached in the prescribed form given in the application Form.
(ii) If any information/certificate furnished in the application is found to be false. the application is liable for rejection.
(c) French Nationals of Indian origin who have been permitted long-term residence in the Union Territory of Pondicherry under the provisions of the Treaty of Cession such students of Pondicherry are eligible to compete for Pondicherry General Quota.
NOTE : Such students of Pondicherry who are French Nationals are required to Produce a Certificate of Registration issued for this purpose from the French Consulate at Pondicherry."
Column 9 of the application form is as follows :
Please indicate in the box provided the category aginst which you are applying: 5 Code : Open General :1
Open Scheduled Caste :2
Open Scheduled Tribe :3
Pondicherry General :4
Pondicherry Scheduled Caste :5
against this column, the petitioner has indicated item No. 5 which means Pondicherry Scheduled Caste. The petitioner as well as the other applicants are to give a declaration that the information furnished in the application is true. In page 2 of the application, one of the list of enclosures required Is the Residence Certificate in original in the form provided. Page 4 provides for the format for Residence Certificate which is as follows :
INFORMATION TO BE FURNISHED BY CANDIDATES APPLYING FOR PONDICHERRY RESERVED SEAT (Vide prospectus 3.5.1) RESIDENCE CERTIFICATE Declaration by the Candidate :
1. I am an Indian National Person not having any other nationality, (sic)
2. During the last five years. I have studied in the School follows :
PLACE NAME OF THE SCHOOL CLASS STUDIED YEAR FROM TO *Indicate Month and Year Candidate's Signature
3. I am continuously residing at the following address, for the last Five years. (This information should be about the person on the basis of whom residency is claimed) ADDRESS YEAR FROM TO *Indicate to Month and Year Place:
Date:
Signature of Candidate/ Parent/ Guardian This is to certify that Shri/Smt./Miss the candidate/the candidate's parent/ the candidate's guardlan, is a resident of the Union Territory of Pondicherry by virtue of continuous residence for five years or more immediately preceding the date of application in Pondicherry Union Territory.
Place: Signature: (Seal) Date: Designation:
Note : This certificate should be signed by an Office of the Revenue Department not lower in Rank than a Tahsildar (vide para 3.5.1 of the Prospectus)
7. Therefore, when the petitioner claims that he comes under Pondicherry Scheduled Caste Category, she must satisfy that she/ her parents are residing in the Union Territory of Pondicherry continuously for at least five years immediately preceding the date of application. The fact that the petitioner and her parents were not residing in Pondicherry for the last five years immediately preceding the date of application is known to the applicant as well as to her parents fully. But in spite of that, they have made a wrong statement in their application and they have also obtained time to furnish the residence Certificate. After submitting the application and appearing for the entrance examination and having attended the interview on the plea that they are Pondicherry Scheduled Caste coming within the definition, the petitioner has come around to challenge her non-selection and also that clause in the prospectus. The writ petition, in my view, is liable to be dismissed on the ground that the petitioner had made a wrong statement in the application claiming that she is a Pondicherry Scheduled Caste. Secondly, she had submitted herself on that basis and written the entrance examination attended the interview, now it is not open to her to go back and say that the definition clause is Incorrect.
8. Subject to the above point. I have heard the counsel for the petitioner on merits as well as on the legal points elaborately.
9. The main plank of argument for the learned counsel for the petitioner is the Circular issued by the Government of India, Ministry of Home Affairs dated 22-3-1997. This is a clarification issued in reference to the issuance of Scheduled Caste and Scheduled Tribe Certificates. The circular elaborates the legal position (sic) concept of the term "residents' on the part of the authorities while issuing the certificate. It stales that since the people belonging to the same caste, but living in different States/Union Territories may not necessarily suffer from the same disabilities, it is possible that two persons belonging to the same caste hut residing in different States/Union Territories may not both be treated to belong to S.C./S.T. or vice versa. Thus, the residency of a particular person of a particular locality assumes special significance. A person who is temporarily away from his permanent place of abode at the time of notification of the Presidential Order can also be regarded as Scheduled Caste or Scheduled Tribe, as the case may be, if his caste has been specified in that order in relation to the State. But. he cannot be related in relation to the place of his temporary residence notwithstanding the fact that the name of his caste has been scheduled in respect of that area in any Presidential Order. It is to ensure a special provision in the pro forma prescribed for the issue of such a certificate is made. A revenue authority of one district would not be competent to issue such a certificate in respect of a person belonging to another district. In the case of persons born after the date of the notification of the relevant Presidential Order the place of residence for the purpose of requiring Scheduled Caste Status is the place of permanent abode of their parent at the time of notification of the Presidential Order under which they claim to belong to such caste. Thus, the legal position as per the circular is that the term residence for the purpose of requiring Schedule Caste status is the place of permanent abode of their parents at the time of notification of the Presidential Order under which they claim to belong to such a caste. The issue of a community certificate is not to be confused with the eligibility criteria laid down by the second respondent. The fact that the petitioners father belongs to a Scheduled Caste is not in dispute. But, as per the prospectus, eight seats are set apart for Scheduled Castes. The second respondent being a Central Government institution, they have reserved eight seats for all the Scheduled Caste candidates. However, as a concession, in the place of the location of the institution, five seats are set apart for residents of Pondicherry Scheduled Castes. This is not to be treated as a reservation under Article 16(4). It is only a concession shown and a source of selection for the colleges on the basis of the location. Just like Pondicherry General where 15 seats are located to residents of Pondicherry, similarly, five seats are located to residents of Pondicherry. Those residents have no connection with the Scheduled Caste Presidential Notification. Further, it cannot be, in any way, restricting the right of the Scheduled Castes in the reservation of allotment to the eight seats reserved for Scheduled Castes.
10. In D. N. Chanchlav. State of Mysore. the Supreme Court upheld the reservation and preferential treatment to a class of person. According to the Supreme Court, the Principle underlying Article 15(4) of the Constitution of India is that a Preferential treatment can validity be given, because the socially and educationally backward classes need it. It would not, in any way. be improper if that principle were also to he applied to those who are handicapped, but do not fall under Article 15(4). Their Lordships observed.
"The Government is entitled to lay down sources from which selection would be made. A provision laying down such sources is, strictly speaking, not a reservation. It is not reservation as understood by Article 15 against which objection can be taken on the ground that it is excessive."
In Deepak Sibal v. Punjab University, the Supreme Court held that 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 nexus with the object sought to be achieved by the rules for such reservation. Thus, the allotment of seats on the basis of residential requirement to Scheduled Caste candidate is not a reservation under Article 15(4) or 16(4) of the Constitution of India. It is a concession or a source of selection decided by the Cenlral Government on the basis of the location of the institution within Pondicherry State. The same consideration is applied to Delhi as well as to Chandigarh. Therefore, the Judgments of the Supreme Court in Marrichandra v. Dean, S.G.S. Medical College, and Action Committee v. Union of India. will not apply to the facts of the case. The Supreme Court has laid down in those judgments that a person who is recognised as a member of S.T./S.C. in his original State will be entitled to all the benefits under the Constitution in that State alone and not in all parts of the country wherever he migrates. In this case, as per the order, eight seats which is 16% of the available seats have been reserved for Scheduled Caste candidates. In my view, the contention of the petitioner that the remaining five seats allotted on the basis of residence of Scheduled Caste should also be based on the Presidential notification order therefore cannot be sustained. In my view, this is a different classification and source of selection and not a reservation under Article 13(4)or 16(4) of the Constitution of India. In the colleges belonging to the Pondicherry Union Territory, they are bound to follow the principle of reservation as enunciated by the Honourable Supreme Court. In this case, the JIPMER is Central Government institution and they have followed a reservation as concession shown for selection of these candidates from the Union Territory.
11. A Division Bench of this Court in W. P. Nos. 10755/92 etc., batch dated 16-12-92, dealing with the reservation for service candidates, held that the Government is entitled to decide from which source the admission shall be made or to prescribe the qualifications for admissions to the colleges so long as its action is not arbitrary or violative of Article 14 of the Constitution. The Constitution Bench of the Supreme Court in Indira Sawhney v. Union of India, , upheld the special reservation in favour of classes like physically handicapped, ex-servicemen, sportsmen, freedom fighters etc. It is open to the Government to formulate a policy or a scheme for providing such kind of reservation. Therefore, the policy of the Central Government in providing a certain percentage of seats for residences with the residence qualification cannot be held to be arbitrary.
12. For all these reasons, I do not find any grounds to grant the relief sought for in the above writ petitions. The writ petitions therefore fail and are accordingly dismissed. Consequently, the connected W.M.Ps. are closed.