Arjun Singh vs State of Punjab and Others

Gurmeet Singh Sandhawalia, J.—The present writ petition has been filed seeking direction in the nature of writ of mandamus for admitting the petitioner in the MBBS course for the Academic year 2013 on the strength of being at Sr. No. 3 in the merit list of the candidates, in the category of a Gallantry Award/Other Award Winners and that the admission granted to respondents No. 5 to 7 be set aside, being lower in merit. The pleaded case of the petitioner is that he is permanent resident of State of Punjab and the father of the petitioner is an Army Officer and is a recipient of Military Award of the General Officer Commanding-in-Chiefs, Commendation. The Commendation in the Defence Services are proper awards instituted through various official Army orders and are accompanied with a metallic medal disc which is worn on the uniform and the awards are published in the official orders of the defence service and entered in the records of the concerned officials. The petitioner appeared in the National, Eligibility-cum- Entrance Test-UG, 2013 (NEET) and secured over all rank of 405 in '' the State of Punjab and all India overall rank 19266. The category of the petitioner was numbered at 25. The petitioner applied for admission on 28.06.2013 and attended the counselling on 16.07.2013 and was shown at Sr. No. 3 in his category, having NEET percentile No. 97.0620 and applied against categories 11 and 25. In the eligibility criteria of the wards of Defence Personnel, against Clause 15A(vii)(e) of the Prospectus, "Gallantry Award/Other Award Winners, both serving/retired" were to be given preference. At the time of counselling, the petitioner was informed that his candidature under the said category was not covered as the interpretation of the respondents was that Commendations awarded by the Chief of the Army Staff or General Officer Commanding-in- Chief or the Vice Chief of the Army Staff, are not Gallantry Awards: The award was for distinguished services of the petitioner''s father arid the same was also. recognized being "Other Award Winners" under 15A(vii)(e).

That father of respondent No. 6 was a recipient of Vishist Sewa Medal which was a distinguished service award but not a Gallantry Award but he was granted admission which was refused to the petitioner. Accordingly, the writ petition was filed and Union of India was impleaded as party to seek their response as to whether the Commendation Cards fall within the definition of other award.

As per the affidavit of the Union of India, it was deposed that the Commendation Cards are awarded for individual acts of gallantry, distinguished service or devotion to duty and are considered as an award, as per letter dated 09.11.2006, issued by the Headquarter of Ministry of Defence (Army). It is further deposed that it is for fee concerned State Governments to give necessary recognition as well as the benefits of the awards.

In the affidavit filed by the State, it was submitted that the'' power of admission 1 has been conferred on respondents No. 2 to 4 and the petitioner was declared ineligible as he did not produce any Gallantry Award/Other Awards.

In the written statement, filed by respondents No. 2 to 4, it was pleaded that the certificate submitted by the petitioner was a commendation certificate and it was not considered in Category 25 as it was not a Gallantry Award/Other Award Winner, which was recognized by the Government of India/State Government. The certificate was on account of service rendered and only beneficial in the service cadre and can be used for service benefits and the University did not recognise those certificates.

In the written statement, filed by respondent No. 5, the plea taken was that the selection of the private respondents was made in accordance with the terms and conditions of the Prospectus and as their fathers were awardees of Sena Medal (Gallantry). The father of the petitioner was a recipient of a Military award of General Officer Commanding-in-Chief Commendation, which could not be compared with the Gallantry Award. Admission had been granted as per the eligibility criteria provided in Clause 15A(vii) of the Prospectus and preference was rightly given and no discrimination was shown.

Respondent No. 7, in her reply, submitted that she qualified the NEET, by securing NEET percentile as 97.5922, NEET marks 422 and applied for admission under Category 26 of the wards for defence personnel''s, for which, 1% seats were reserved. The Commendation Card of the petitioner''s father was only beneficial for the service cadre and no preference could be given for admission.

The question that thus, arises for consideration before this Court, is that whether the Commendation Card, awarded to the petitioner''s father would entitle him for admission against category 15A(vii)(e), against the Gallantry Award/Other Award Winners, both serving/retired, in preference to the category under Clause (f) of the serving defence personnel/Ex-serviceman, at the cost of respondent No. 7, who, admittedly, has been given admission under Clause (f) and whether the admission granted to the said respondent is to be cancelled. Clause 15A(vii) provides that the wards of defence personnel have to be given admission in order of preference to the exclusion of the next category. The said clause reads as under:

"(vii) Wards of Defence personnel (in order of preference to the exclusion of next category)

(a) Killed in action

(b) Disabled in action to the extent of 50% or above and Boarded out of service

(c) Dies while in service and Death attributed to military service

(d) Disabled in service and Boarded out with disability attributed to military service

(e) Gallantry Award/other Award Winners both serving/retired.,

(f) Serving Defence personnel /Ex-serviceman"

Under sub-clause (e) of the said clause, Gallantry Award/Other Award Winners both serving/retired, have been placed at the same level, which has created the anomaly and the Gallantry Award has not been placed at a higher level. Thus, the State, in its wisdom, has not given any preference to Gallantry Awards and placed it at par with the other Award Winners. It is on the strength of this fact, the petitioner has argued that he t& entitled for admission, over and above, respondent No. 7 as the said clause provides that preference is to be given to the exclusion of the next category. There is no denying the fact that the petitioner''s father has been awarded this Commendation Card on 15.08.2006, by the GOC, Chief of the Western Command and the Commendation Certificates have also been issued. The instructions AO 54/77, which have been appended V by the petitioner also go on to show that Commendation Cards are to be awarded for individual acts of gallantry and distinguished service or devotion to duty performed, either in operation or non-operational areas, which was of sufficiently high order, to qualify for a higher Gallantry Award. Such award is to be entered in the record of service of the individual by the respective record office/unit and the names of the recipients is to be published in the Army Orders. The said Army Order reads as under:

"AO 54/77 COAS''s Commendation Card for gallantry and distinguished service

The Chief of the Army Staff has approved of the award of Commendation Cards for gallantry and distinguished service.

The Commendation Card will be awarded for individual acts of gallantry or distinguished service or devotion to duty performed either in operation or non-operational areas which are not of a sufficiently high order to qualify for a higher gallantry award or for which the higher award is inappropriate.

The award will be for a specific act of bravery or distinguished service or special service.

The award will not be made posthumously.

All ranks of the Army and civilian personnel working under the supervision, direction and control of the Army are eligible for the award.

The names of the recipients will be published in Army Orders on the authority of which necessary Part II Orders will be issued. In this connection the unit concerned will be responsible for taking action as under:--

(a) Initiating casualty return in respect of officers for publication in the Part II. orders,

(b) publishing Part II Orders in respect of JCOs/OR/NCs(E) serving in f non-operational areas; and

(c) forwarding casualty return to Record Office in respect of JCOs/OR/NCs(E) serving in concessional/operational areas for issue of Part II Orders.

Entries thereof will then be made in the Record of Service/Sheet Roll/Service and Casualty Form of the individual by the respective Record Office/Unit.

Commendation Cards will be sent to the respective Record Offices for prompt onward transmission to Officer Commanding units of the awardees concerned."

It is further confirmed from the affidavit filed on behalf of the Union of India that such Commendation Cards are included under the headings of "Honours and awards for individual acts of gallantry or distinguished service or devotion to duty". However, Union of India has left the onus upon the State Government to give necessary recognition, which would be clear from its affidavit dated 05.01.2013, which reads as under:

"3. That in so far as COAS/GOC-in C Commendation Cards are concerned, it is pertinent to mention here that they are included under the heading of Honors and Awards. The Commendation Cards are awarded for individual acts of Gallantry, Distinguished service or devotion to duty. Therefore, it is considered as an award. A copy of the letter dated 09.11.2006, to this effect is appended herewith as Annexure A-1.

That it is not out of place to mention here that it is for the concerned State Governments to give necessary recognition as well as benefits for these awards."

To similar effect is the order dated 09.11.2006, issued by the Integrated Headquarter of Ministry of Defence (Army) (Annexure A1) which provides that the Commendation Card, issued by the Office of Chief of Army Staff, is for individual acts of gallantry, distinguished service or devotion to duty, will be at par with the Commendations, awarded by the GOCs-in-Chief and is to be awarded twice a year, on occasion of Independence Day and the Army Day. The guidelines for the submissions of recommendations were to be the same, as per the honours and awards, issued vide the Army Order 54/77, which has been reproduced above.

The observations of the Division Bench in CWP No. 14351 of 2008 titled Nikhil Dogra v, Panjab University & others.'' decided on 01.10.2008, are also to the same effect. In the said case, the petitioner was being denied admission in the B.E. Course, even though his father had a Commendation Card, issued by the Chief of Army Staff, whereas, the private respondents, in that case, had been given Vishisht Sewa Medal and Sena Medals, which did not fall within the purview of Non-Gallantry Awards. Accordingly, the Division Bench went on to hold that the Commendation Card, issued by the Chief of Army Staff, was a Gallantry Award and the petitioner had been wrongly excluded for admission, against the seat meant for the Gallantry Award Winners. The relevant portion of the judgment read as under:

"Having heard learned counsel for the parties at some length, we are of the opinion that Chief of Staff Commendation Card awarded to the father of the petitioner is a Gallantry Award as such Commendation Card finds mention in the list of Gallantry Awards on the website of Indian Army. Such is the communication produced by Ms. Geeta Singhwal, learned counsel for Union of India, in the Court. Therefore, we are of the opinion that the petitioner has been wrongly excluded for admission against the seat meant for the category of Gallantry Award. Winners."

Counsel for respondents No. 2 to 4-University, has tried to justify its stand that the following are the Gallantry Awardees and the Distinguished Awardees, who are entitled for the benefit, as recognized by the State and the Sena Medal figured in the said list and similarly, the Vishisht Sewa Medal also figured in the said list and therefore, (the petitioner had been rightly excluded. The said list, placed on record as Annexure R2/3 with C.M. No. 17925 of 2013, relied upon by counsel for the respondent-University, reads as under:

"Gallantry Awardees

Param Vir Chakra (PVC)

Ashok Chakra (AC)

Maha Vir Chakra (MVC)

Kirti Chakra (KC)

Vir Chakra (VrC)

Shaurya Chakra (SC)

Sena Medal/Nao Sena Medal/Vayu Sena Medal (G)

MID(G) Distinguished Awardees

Sarvottam Yudh Sewa Medal (SYSM)

Param Vishisht Sewa Medal (PVSM)

Uttam Yudh Sewa Medal (UYSM)

Ati Vishisht Sewa Medal (AVSM)

Yudh Sewa Medal (YSM)

Vishisht Sewa Medal (VSM)

TA(OR) One Time only

TA(Officers) One Time only,

SM(D)

MID(D)"

The distinction, however, in the present case, is that the State has placed at par, Gallantry Awards and Other Award Winners and therefore, now, cannot turn around and say that the benefit cannot be given to the persons who are Other Award Winners and would not be entitled for consideration. The plea taken by the Director, Research and Medical Education, Punjab, in its affidavit dated 03.12.2013 is that the said Commendation Certificates have not been recognized as awards by the Department of Defence Service Welfare. The plea that a candidate with the Gallantry Award is to be given preference over the Other Award Winners, if he/she be allowed in merit, cannot be accepted, in such circumstances.

Counsel for the respondent-University has rightly distinguished the judgment dated 05.10.2004, of the Andhra Pradesh High Court, relied upon by counsel for the petitioner titled as R. Manjvsha Kashyap v. Principal Secretary to Govt. reported as 2004 (6) ALD 64, on the ground that the said case pertained to Gallantry Awards. In the said case, the classification of the entitlement of Gallantry Award/Other Award Winners was not at par and in such circumstances, the observations made therein would not be applicable.

Thus, in the present facts and circumstances of the case, keeping in mind the abovesaid clause, this Court is of the opinion that the petitioner has been wrongly denied consideration for admission and the benefit of the Commendation Certificate, issued in favour of his father, was liable to be given to the petitioner.

However, there is another aspect which is to be kept in mind by this Court while exercising its discretionary powers under Article 226 that counsel for respondent No. 7 has rightfully submitted that she was. given admission against her category, in merit, without arty misrepresentation and has studied for almost the whole of the academic year. Now, for no fault of her, her admission will be cancelled and therefore, the equitable jurisdiction of this Court should not be exercised, especially keeping in mind the fact that the petitioner has already been granted admission for the said course in the Army Medical College at New Delhi and therefore, she would lose a valuable year and cannot get admission and she would be adversely affected. There is no denying the fact that the petitioner, whose all India merit was at 19266, is pursuing his MBBS course at New Delhi in the Army College of Medical Sciences (ACMS), though this fact has not been mentioned in the writ petition but not denied by counsel for the petitioner. He, however submits that the Apex Court has declared the admission bad on the ground that there was 100% reservation for Army personnel and that it was not permissible. However, there is no denying the fact that the said reservation has been held bad from the next academic session and all the admissions made earlier have been protected by the Apex Court in Indian Medical Association Vs. Union of India (UOI) and Others, . The relevant portion reads as under:

"For the aforesaid reasons the impugned judgment of the Delhi High Court is set aside. Consequently, the respondents are directed to admit the Writ Petitioners into the First Year of MBBS Course in Army College of Medical Sciences, if the Writ Petitioners still so desire, for they have been deprived of their legitimate right of admission to the course, for no fault of theirs, notwithstanding the rank secured by them in the CET. It is true that they have appeared at the common entrance examination held long ago and qualified themselves to get admitted but were deprived of the same on account of the illegal admission polity of Army College of Medical Sciences permitted by the Government of Delhi. In the circumstances, all the respondents are accordingly directed to ensure that the Writ Petitioners are admitted into the First Year MBBS Course, in the, ensuing academic year by creating supernumerary seats. However, we make it clear that the admissions already made by Army College of Medical Sciences are saved and shall not be affected in any manner whatsoever. The appeals and the writ petitions are accordingly ordered. Order accordingly."

The Apex Court in Ramesh Chandra Sankla Etc. Vs. Vikram Cement Etc., discussed the equitable jurisdictional power of the High Court under Article 226 of the Constitution of India and held that while granting relief, balancing interest and equities have to be protected and the Court may give and refuse relief in furtherance of justice, equity and good conscience. The relevant paras read as under:

"81. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae, i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must "advance the ends of justice and uproot injustice''.

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From the above cases, it clearly transpires that powers under Articles 226 and 227 are discretionary and equitable and are required to be exercised in the larger interest of justice. While granting relief in favour of the applicant, the Court must take into account balancing interests and equities. It can mould relief considering the facts of the case. It can pass an appropriate order which justice may demand and equities may project. As observed by this Court in Shiv Shankar Dal Mills and Others Vs. State of Haryana and Others, , Courts of equity should go much further both to give and refuse relief in furtherance of public interest. Granting or withholding of relief may properly be dependent upon considerations of justice, equity and good conscience."

Thus, this Court is of the opinion that it would not be appropriate to grant admission to the petitioner at the cost of respondent No. 7, by cancelling her admission, as at this stage, the seat at ACMS would also go waste where the petitioner is already studying, as the last date for admission was 30.09.2013, as per the law laid down by the Apex Court. Thus, while holding in favour of the petitioner that he was entitled for the benefit of admission against the Commendation Certificate issued in his father''s favour, however, the relief, at this stage, cannot be granted to him. Writ petition is disposed of with the abovesaid observations.