Geetika vs State of Punjab and Others

Rakesh Kumar Jain, J.—By way of this order, I shall dispose of 8 writ petitions bearing CWP Nos. 17852, 19972, 13584, 17432, 17290, 17664, 18177 and 21017 of 2013 due to commonality of the issue involved. However, the facts are extracted from CWP No. 17852 of 2013. It is common case of the parties that the petitioners in all the cases are residents of the State of Punjab but they have passed their 10+2 examination from a school outside the State of Punjab. Untill the year 2012, the admissions in the medical/dental colleges in the State of Punjab were regulated through Punjab Medical Entrance Test (PMET) but in the year 2013, National Eligibility-cum-Entrance Test (NEET-UG-2013) was held, on the basis of which All India Rank and the State Preference Rank were prepared.

The common case of the petitioners in all the cases is that they are eligible for admission as per the State rank but admission was not granted to them because of Clause 14 of the notification dated 05.06.2013 issued by the Government of Punjab, Department of Medical Education and Research, on the subject of admission to the MBBS/BDS courses in the government and private institutes of the State of Punjab which required that a candidate should have passed his/her 10+2 examination or other qualifying examination in place of 10+2 from a recognized institution situated in the State of Punjab except for the exemptions wherever applicable. It is alleged that the online form for NEET-UG-2013 was filled up by all the petitioners in the month of December, 2012, NEET-UG-2013 exam was held on 05.05.2013, result thereof was declared on 05.06.2013 and on the same day, notification was also issued containing the impugned Clause 14. It is not disputed that all the petitioners have passed their 10+2 from the Central Board of Secondary Education from the schools/institutions situated outside the State of Punjab. It is also their common case that they were born in the State of Punjab, permanent residents of the State of Punjab and have also studied upto 10th Class in the State of Punjab and simply for the reason of doing 10+2 from an institution outside the State of Punjab, they cannot be debarred from seeking admission. It is alleged that till the time of their appearance in the NEET-UG-2013 examination, the notification dated 06.09.1996 was in operation, which has also been made a part of the notification dated 05.06.2013, as reflected in Clause 12 thereof. Clause 12 of the notification dated 05.06.2013 is reproduced here-asunder:--

The candidate should be a bona fide resident of Punjab. The Resident status of the Punjab State, will be taken in terms of Punjab Government, Department of Personnel and Administrative Reforms (PP-II Branch) letter No. 1/3/95-3 PP II/9619, dated 6th June, 1996, ID No. 1/2/96-3PP- 2/8976, dated 7th July, 1998 and ID No. 1/3/95 3PP II/81, dated 1st January 1999 and any further instructions issued by the Department of Personnel, if any, and the same, shall be adhered. This is applicable on all M.B.B.S./B.D.S. candidates except 15% All India Quota and NRI seats.

The residents status of the State of Punjab is to be taken in terms of the Punjab Government, Department of Personnel and Administrative Reforms (PP-II Branch) letter No. 1/3/95-3 PP II/9619, dated 6th June, 1996, ID No. 1/2/96-3PP-2/8976, dated 7th July, 1998 and ID No. 1/3/95-3PP-II/81, dated 1st January 1999. Relevant provisions in this regard are reproduced here-as-under:--

The petitioners are aggrieved against Clause 14 of the notification dated 05.06.2013, which is reproduced as under:--

Candidate should have passed his/her 10+2 examination or other qualifying examination in place of 10+2 from a recognized institution situated in the State of Punjab except for the exemptions wherever applicable. The candidate would be required to submit a certificate to this effect from the Principal/Head of the Institute last attended in the Prescribed Proforma. The following categories will be exempted from this condition.

i) Children/wards/dependents (whose parents are not alive) of all those regular Punjab Government employees, members of All India Services borne on Punjab cadre, Serving Judges and the employees of the Punjab and Haryana High Court, employees of Boards/Corporations/Statutory Bodies established by an act of the State of Punjab who have been holding post outside Punjab on or before 1st January of the year of entrance test and their children/wards/dependents were compelled to do 10+1 and/or 10+2 outside Punjab.

ii) Children/wards/dependents (whose parents are not alive) of all those regular Central Government employees, employees of Boards/Corporations/Statutory Bodies of the Central Government who have remained posted inside Punjab for at least two years out of the three years preceding the year of NEETUG 2013 but were posted outside Punjab for some time during these three years due to which their children/wards/dependents were compelled to do 10+1 and/or 10+2 or equivalent qualifying examination outside Punjab. However those who remained posted in Punjab continuously for these three years shall not be entitled to be exempted as they are equally placed with other Punjab Government employees posted in Punjab.

iii) Children/wards/dependents (whose parents are not alive) of all those Punjab Government pensioners who have retired on or before 1st January of the year of entrance test and have settled outside Punjab on or before 1st January of the year of entrance test and their children/wards/dependents were compelled to do 10+1 and/or 10+2 outside Punjab.

iv) Children/wards/dependents (whose parents are not alive) of those military/para-military forces personnel who were born in the territory of Punjab as per their service record at the time of entry into service.

v) Children/wards/dependents (whose parents are not alive) of those Ex-employees of military/para military forces who were born in the territory of Punjab as per their service record at the time of entry into the service and have retired on or after 1st January of the year preceding two years of the year of entrance test.

vi) Candidates belonging to minority community who are competing for the minority quota in the minority institutions.

vii) Candidates seeking admission under NRI category.

viii) Wards of defence personnel posted in Punjab who has passed only for the qualifying examination i.e. 10+2 exam mandatory for the admission to MBBS/BDS courses shall be considered eligible for admission in professional colleges and institutions in State.

It is argued by learned counsel for the petitioners that the petitioners in all the cases being permanent residents of the State of Punjab, while filling up their online form to take NEET-UG-2013 exam, invariably filled Punjab as first preference for determination of their rank in the State quota because at that time, the instructions dated 06.09.1996 were in operation which only required that in order to apply for admission in the State of Punjab, the candidate should be a permanent resident of the State of Punjab. It is further submitted that firstly the respondents cannot change the criteria for admission with the declaration of result of NEET-UG-2013 and even if it is to be maintained, for the sake of arguments, then the said criteria is not applicable to their case and would apply in future. The reasoning given by the counsel for the petitioners is that had the criteria, notified vide notification dated 05.06.2013, been made known to the petitioners earlier at the time when they had filled up their online form for taking up NEET-UG-2013 exam in which they had to give their option for the State quota, they would have given option of the State from where they had passed 10+2 examination and would not have given option for the State of Punjab in any case because they had not passed their 10+2 qualifying examination from an institution in the State of Punjab and were not per se eligible for getting admission in the medical colleges in the State of Punjab.

In support of their contentions, learned counsel for the petitioners have relied upon various decisions of the this Court in the cases of Medical Entrance Problem Redressal Forum (regd.) v. State of Punjab, 1999 (1) S.C.T. 255, Amardeep Singh Sahota v. State of Punjab, 1993 (4) S.C.T. 328 , Meenal Sharma Vs. State of Haryana, and Kiran Dixit Vs. Chandigarh Administration and Another, and a decision of the Supreme Court in the case of Anant Madaan and others Vs. State of Haryana and others, .

On the other hand, the stand taken by the respondents is that the petitioners are not fulfilling the eligibility criteria as per Clause 14 of the notification dated 05.06.2013 contained in the University prospectus for admission to MBBS and BDS Courses for the session 2013-14. It is also alleged that the petitioners are not covered under any of the exemptions because most of the exemptions are applicable in case where the parents of the candidates are not alive. It is further alleged that as per NEET-UG-2013 Information Bulletin for admission to MBBS and BDS Courses, it is mentioned in Clause 1 (c), Clause 11.2 and Clause 11.3 that the admission to Government funded Medical Institutions/Medial or Dental Colleges Affiliated to Central Universities/Deemed Universities etc. shall be subject to prevailing reservation policies and rules of admission applicable to the Institution/University concerned and the admission under 85% State quota seats in Government Medical Colleges shall be subject to reservation policy and eligibility criteria prevailing in the State/Union Territory as notified by the respective State/Union Territory from time to time. Aforesaid Clauses 1(c), 11.2 and 11.3 are reproduced here-as-under:--

1(c). The reservation of seats in medical/dental colleges for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as Statewise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to MBBS/BDS courses from the said lists only."

11.2 ADMISSION AND RESERVATION OF SEATS IN GOVERNMENT FUNDED INSTITUTIONS/MEDICAL OR DENTAL COLLEGES AFFILIATED TO CENTRAL UNIVERSITIES/DEEMED UNIVERSITIES ETC.

Admission to Government funded Medical Institutions/Medical or Dental Colleges Affiliated to Central Universities/Deemed Universities etc. shall be subject to prevailing reservation policies and rules of admission applicable to the Institution/University concerned.

11.3 RESERVATION OF SEATS IN MEDICAL COLLEGES UNDER STATE QUOTA AND PRIVATE MEDICAL COLLEGES:

(a) Admission under 85% State quota seats in Government Medical Colleges shall be subject to reservation policy and Eligibility Criteria prevailing in the State/Union Territory as notified by the respective State/Union Territory from time to time.

(b) The reservation of seats in Medical Colleges for respective categories shall be as per applicable laws prevailing in State/Union Territory concerned.

(c) Admission to MBBS/BDS courses in Private medical Colleges shall be subject to Policies of the State/Union Territory.

It is further alleged that till the session 2012-2013, candidates who were seeking admission in the MBBS/BDS Courses in the State of Punjab, had to appear in the PMET and as per Clause 4A(vi) of the Punjab Government notification dated 31.03.2008, contained in the PMET Prospectus-2012, the eligibility condition for taking admission was that the candidate should have passed his/her 10+2 examination or other qualifying examination in place of 10+2 from a recognized institution situated in the State of Punjab. Clause 4A(vi) of the Punjab Government notification dated 31.03.2008 is reproduced as under:--

ELIGIBILITY CRITERIA FOR PMET

A. For PMET (Common criteria for all Courses)

(vi) should have passed his/her 10+2 examination or other qualifying examination in place of 10+2, as listed in 4(A)(i)(a) to (f) above, as candidate from a recognized institution situated in the State of Punjab only except for the exemptions wherever applicable. The candidate would be required to submit a certificate to this effect from the Principal/Head of the institute last attended in the Prescribed Proforma.

D. Exemptions under para 4A(i)(a) to (f) for 4A (vi) and 4C(i)

i) Children/wards/dependents (whose parents are not alive) of all those regular Punjab Government employees, members of All India Services borne on Punjab cadre. Serving Judges and the employees of the Punjab and Haryana High Court, employees of Boards/Corporations/Statutory Bodies established by an act of the State of Punjab who have been holding post outside Punjab on or before 1st January of the year of entrance test and their children/wards/dependents were compelled to do 10+1 and/or 10+2 outside Punjab.

ii) Children/wards/dependents (whose parents are not alive) of all those regular Central Government employees, employees of Boards/Corporations/Statutory Bodies of the Central Government who have remained posted Inside Punjab for at least two years out of the three years preceding the year of PMET but were posted outside Punjab or some time during these three years due to which their children/wards/dependents were compelled to do 10+1 and/or 10+2 or equivalent qualifying examination outside Punjab. However, those who remained posted in Punjab continuously for these three years shall not be entitled to be exempted as they are equally placed with other Punjab Government employees posted in Punjab.

iii) Children/wards/dependents (whose parents are not alive) of all those Punjab Government pensioners who have retired on or before 1st January of the year of entrance test and have settled outside Punjab on or before 1st January of the year of entrance test and their children/wards/dependents were compelled to do 10+1 and/or 10+2 outside Punjab.

iv) Children/wards/dependents (whose parents are not alive) of those military/para military forces personnel who were born in the territory of Punjab as per their service record at the time of entry into service.

v) Children/wards/dependents (whose parents are not alive) of those Ex-employees of military/para military forces who were born in the territory of Punjab as per their service record at the time of entry into the service and have retired on or after 1st January of the year preceding two years of the year of entrance test.

vi) Candidates getting admission on all India basis in BAMS, BHMS courses in case the Punjab candidates are not available.

vii) Candidates belonging to minority community who are competing for the minority quota in the minority institutions.

viii) Candidates seeking admission under NRI category.

ix) Candidates under J&K migrant.

x) Tsunami Victim Category.

xi) Wards of defence personnel posted in Punjab who has passed only for the qualifying examination i.e. 10+2 exam mandatory for the admission to MBBS/BDS COURSE-IN MEDICAL and DENTAL shall be considered eligible for admission in professional colleges and institutions in State. (Para amended vide Corrigendum No. 5/3/08- 3HBIII/4363 dated 25.08.2009)

Note 1 For those candidates who are repeaters in categories (i) to (v) the year of entrance for the purpose of all these clauses shall be taken as the year of passing 10+2 examination by the Candidates in place of year of PMET.

Note 2 The dependency certificate in case of those whose parents are not alive shall have also to be taken from the Deputy Commissioner of the District where the candidate resides.

Counsel for the respondents have submitted that the State can make preference in admission on the basis of residence as well as institution, as admissible, and in that regard reliance has been placed upon Anant Madaan''s case (supra) and Meenal sharma (supra).

Learned counsel for the respondents have further relied upon the decision of the Supreme Court in the case of Saurabh Chaudri and Others Vs. Union of India (UOI) and Others, .

Before I proceed further, I want to clarify that Geetika has filed two writ petitions. In CWP No. 19972 of 2013, she has challenged the notification dated 05.06.2013. This writ petition was filed by her on 13.08.2013, whereas in CWP No. 17852 of 2013, which was filed earlier, she has prayed for admission alleging herself eligible in terms of Clause 14(iv) of the notification dated 05.06.2013 being the daughter of a military personnel who was born in the territory of Punjab, as per his service record, at the time of entry into service.

It would also be pertinent to mention that in CWP No. 13584 of 2013 titled as "Anu Singla v. State of Punjab and others", an application bearing CM No. 11230-CWP of 2013 was filed seeking permission of the Court to allow the petitioner to deposit fee and attend the classes. The said application was disposed of on 16.08.2013 by the Division Bench of this Court with the following order:--

Notice which is accepted by the learned counsel for the respondents.

The prayer made in this application is to permit the petitioner to deposit the fee and attend the classes.

We were inclined to hear and dispose of the writ petition today itself and that is why we had kept the matter for today. As the respondents have failed to file their affidavits and further time is sought, we have no option but to defer hearing of the petition. The petitioner cannot be made to suffer for the failure of the respondents to bring on record their stand.

Let respondent Nos. 2 and 3 should tentatively accept the fee of the petitioner and permit her to attend the classes, in the meantime, subject to the final orders to be passed in this writ petition.

We make it clear that this will not create special equity in favour of the applicant.

Application stands disposed of.

In view of the aforesaid order, separate orders have been passed in all the cases allowing the petitioners in all the cases to deposit the fee and the respondents were directed to permit them to attend the classes subject to the final outcome of the writ petition. Consequently, the petitioners are at present attending the classes.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the parties have made reference to various judgments in support of their contentions.

In Medical Entrance Problem Redressal Forum''s case (supra), which has been relied upon by learned counsel for the petitioners, it was held that the criteria once advertised in the prospectus or notification could not be changed to the detriment of a student.

Similarly, in Amardeep Singh Sahota''s case (supra), it was held that once a student appeared for test on the basis of policy laid down in prospectus, it cannot subsequently be changed by the State Government to the detriment of students and to the benefit of the other students.

In Kiran Dixit''s case (supra), it was observed that if there is a stipulation that those candidates are eligible for admission who had passed 10+2 examination from an institute/school of Chandigarh, then it amounts to 100% reservation on the basis of institutional preference which is not permissible.

However, in Anant Madan''s case (supra), it was held by the Supreme Court that admission on the basis of residence/institutional preference is permissible if the condition is applicable on 85% seats and 15% seats of All India quota seats are excluded.

Insofar as the judgment relied upon by the learned counsel for the respondents are concerned, in Saurabh Chaudri and others'' case (supra), the Supreme Court, on the issue of reservation on the basis of place of birth/domicile in the matter of admission in the postgraduate medical course, held that reservation can be done but to a particular percentage. There is no dispute that in Anant Madan''s case (supra), which has been also relied upon by the learned counsel for the respondents, the institutional preference has been held to be permissible, if there is no total reservation.

Similarly, in Meenal Sharma''s case (supra), it was held that reservation can be made by the State in preference to candidates who have studied in particular institutions or region.

Thus, there is no dispute that institutional preference can be made but the question is that at what stage the institutional preference can be declared.

It is not in dispute that admissions to the MBBS/BDS Courses in the government/private/aided/unaided colleges of the State of Punjab are based upon the rank obtained in the NEET-UG-2013 examination. NEET-UG-2013 examination was conducted by the CBSE. Ranks of the candidates on the basis of their percentile score were prepared for All India quota, AFMC quota and State quota seats. The candidates were required to give their preferences for the State quota seats. The CBSE prepared not only the rank of a candidate in the preferred States but also in the category, namely, General, Scheduled Castes and Scheduled Tribes etc. For example, in the case of Geetika, while filling up her online form for the NEET-UG- 2013, she had filled up her preference for the State quota seats only for the State of Punjab. Accordingly, the CBSE indicated her rank on the basis of her percentile score amongst the students who had given their preference for the State quota seat in the State of Punjab. The said candidate, for the purpose of taking admission in the colleges of the State of Punjab, had to rely upon her rank of NEET-UG-2013 and to compete with other candidates who had also made preference for the State quota seat in the State of Punjab. At the time when the form was filled up, the candidates were not aware that there would be institutional preference in the matter of admission in the State of Punjab based upon their qualifying 10+2 examination from a school located in Punjab only. Had it been known to them before filling up the form of NEET-UG-2013 examination, candidates like Geetika would not have made only one preference for the State quota seats and would have opted for some other States because in that situation she would not have been eligible at all for a seat in the State of Punjab as she had done her 10+2 qualifying examination from Bangalore. In this manner, since there is no other preference by her in the NEETUG-2013 form with regard to any other State, the CBSE has not prepared her State rank for any other State, therefore, the candidates like Geetika would not get admission anywhere and her entire effort would have to go waste.

There is another aspect to look in this matter. Supposing a candidate made a preference of 2 States including the State of Punjab but he/she has passed his/her qualifying examination of 10+2 from an institution outside the State of Punjab, according to notification 05.06.2013, he/she would not be eligible to take admission in the State of Punjab and in that situation one of his/her preferences would simply become redundant and possibly if he/she had filled up preference of another State of which he/she is not the domicile, then such a student may not be given admission in that State also. In that manner also, the student would be left without any chance to get admission in the 85% State quota seats only because of the reason that notification has been issued making institutional preference on the day when the NEET-UG-2013 result was declared.

It is not disputed by the respondents that the criteria for admission made known by notification dated 05.06.2013 was simultaneous to the declaration of result of NEET-UG-2013 examination and by that time, there was not even a whisper by the respondents that a candidate, though a domicile of Punjab, was also required to have passed his/her 10+2 qualifying examination from an institution in the State of Punjab for the purpose of being eligible to apply for admission on the basis of his/her rank determined by the CBSE in the State quota preference of the State of Punjab.

In my considered opinion, this kind of notification should have been issued by the respondents even before filling up the forms for NEET examination so that the candidates should have known before hand that they would not be eligible to apply for admission in the State of Punjab even if they acquire a high rank in their own State quota. Thus, Clause 14 of the notification dated 05.06.2013, which debars the candidates for seeking admission in the State of Punjab on the ground that they had not passed 10+2 qualifying examination from an institute in the State of Punjab, is unreasonable, arbitrary and violative of Article 14 of the Constitution of India insofar as the present petitioners are concerned. The condition enumerated in Clause 14 of the notification dated 05.06.2013 may apply in future but would not apply to the petitioners. In view of the aforesaid observation, the present writ petitions are hereby allowed in terms as indicated above and the admission granted to the petitioners, in terms of the interim orders of this Court, are ordered to be regularized forthwith.