Harshit Bansal And Others vs State Of HP And Others

L. Narayana Swamy, CJ

By the medium of the writ petition (CWP No. 5038/2020) the petitioner is seeking direction to respondent No. 3 to include “Bonafide Himachali

students whose parents are living outside the State of Himachal Pradesh on account of their service/posting/private occupation†in the exemption

clause of schooling condition mentioned under “Eligibility and Qualifications†of impugned Notice dated 15.11.2017 and in other writ petition

(CWP No. 5184/2020), the petitioner is seeking direction to respondents to include the category of the petitioner, i.e., Children of Private Sector

Employees of bonafide Himachali as eligible to compete for 85% State Quota, especially in view of the judgment passed by this Court dated 13.7.2018

and 31.7.2018.

In both the writ petitions almost same and similar reliefs have been sought, hence both the above writ petitions are being taken up together for

disposal at the admission stage itself, involving similar questions of law and facts.

For the sake of convenience, very brief facts are being taken up from both the Civil Writ Petitions.

In CWP No. 5038 of 2020, the petitioner is bonafide resident of Himachal Pradesh and his mother is engaged in employment/service in private

sector and the father of the petitioner is in private occupation outside the State of Himachal Pradesh. The petitioner passed matriculation, 10+1 and

10+2 examinations from Haryana (Affiliated to CBSE) in the years 2017, 2018 and 2019 respectively.

It appears that respondent No. 2 issued a Notification bearing No. HFW (DMEH (III) G) 40/09/VolÂX dated 15.11.2017, prescribing the eligibility

criteria for the purpose of admission to MBBS Course for the seats allocated under the State Quota. As per the Notification, all the bonafide

Himachali students, whose parents are residing outside the State of Himachal Pradesh on account of their posting/service/private occupation were

exempted from the schooling condition (condition of passing at least two examinations from middle, matric, 10+1 and 10+2 examinations from schools

situated within the State of Himachal Pradesh. The petitioner being MBBS aspirant applied for National EligibilityÂcumÂEntrance Test (UG)Â2020

on 7.12.2019. The petitioner being a bonafide Himachali, applied for the State Quota of State of Himachal Pradesh on the basis of the aforesaid

notification. On 18.12.2019, respondent No. 4 issued a public notice clarifying the eligibility criteria for the State Quota seats for MBBS course. As

per the said notice, it was specifically stated that the eligibility shall be on the basis of the domicile which shall be governed by respective State Rules.

A provisional Admit Card was issued in favour of the petitioner and roll number was assigned to the petitioner for appearance in the NEET and the

result was declared on 16.10.2020 in which petitioner secured a total of 496 marks. Respondent No. 3 issued notice dated 30.10.2020 specifying the

relevant dates for submission of admission forms as well as the eligibility criteria for the aspirants seeking admission to the said course. A bare perusal

of the said notice does disclose that all the bonafide Himachali students, whose parents are living outside the State of Himachal Pradesh on account of

their service/posting/private occupation were not exempted from schooling condition. However, the said concession was extended to all those bonafide

Himachali students whose parents were living outside the State of Himachal Pradesh and were engaged in government service or service of Armed

Forces.

In CWP No. 5184/2020, the petitioner is asking for the same relief and states that she did her 10th and 12th from Hansraj Public School Panchkula

Haryana and Sri Guru Harkishan Model School Chandigarh from CBSE. She being eligible, applied for NEET (UG) 2020 examination and has

secured 574 out of 720 marks. The petitioner while filling up the form of NEET UGÂ2020 has specifically mentioned his State of eligibility to be the

State of Himachal Pradesh since her father is in private sector and both of them are bonafide Himachalis and the father of the petitioner is residing

outside Himachal Pradesh only for the purpose of earning their livelihood. The Himachal Pradesh University issued a prospectusÂcumÂapplication

form for counseling and admission for Under Graduate MBBS/BDS courses in the State of Himachal Pradesh. In the prospectus, it was mentioned

that the Himachal Pradesh University will conduct counseling for filling up to 85% of State Quota for MBBS/BDS seats as per merit drawn by

Himachal Pradesh University on the basis of All India Merit ranking of NEETÂUGÂ2020. As per the prospectus issued, the petitioner was surprised

to note that the category of the petitioner, i.e., bonafide Himachali who has not passed two examinations and the parents are in private sector was

missing and the children of bonafide Himachali who are working with Central Government/Undertaking or Autonomous bodies established by the

Central Government was finding mention, despite this Hon’ble Court orders passed in CWP No. 1353/2018 dated 13.7.2018 and 31.7.2018

wherein it was categorically held that the employees serving in private employment outside Himachal Pradesh can be equated with employees serving

outside Himachal Pradesh in Government/Public Sector. Therefore, the act of the respondents in not including the category of the petitioner in the

prospectus is contemptuous and unreasonable and without any explanation as to what is the object to be achieved by deleting the category of the

petitioner in the prospectus.

The grounds taken are that rendering ineligible from being considered against 85% State Quota seats is highly arbitrary, illegal, illogical, irrational

and does not meet the principle of intelligible differentia. The act of the respondent is stated to be arbitrary for the reasons that in the prospectus of the

year 2020Â2021, respondents debarred the children of the persons who are working in private sector, but giving the same benefit to the persons who

are working in Government Sector other than the State of Himachal Pradesh is in clear violation of Article 14 of the Constitution of India and not in

accordance with the law laid down by this Court. The act of respondents whereby they debarred the petitioner from being eligible for 85% State

Quota is also stated to be in violation of Article 19 of the Constitution of India for the reasons that Article 19 (1) (d) (g) which gives all citizens the

right to move freely and to carry out any occupation, trade or business and the respondents, on the basis that the petitioner’s parents are working

and residing out of the State and his education is from out of the State, are debarring the petitioner from being eligible for state quota, which is highly

arbitrary, irrational and in violation of fundamental right.

The further grounds taken by the petitioners are that nonÂinclusion of the aforesaid category in the exemption clause of schooling condition is also

in stark violation of the public Notice issued by respondent No. 4. Respondent No. 3 is stated to be bound by the eligibility criteria established by

respondent No. 2 as per notification and cannot change the same at its whims and fancies. The nonÂinclusion of the aforesaid category in the

exemption clause of the schooling condition is in violation of the principle of intelligible differentia as laid down under Article 14 of the Constitution of

India since similarly situated candidates, whose parents are employed in Government service or Armed Forces are included in the exemption Clause.

It is stated that there is an apparent violation of the fundamental rights of the petitioner since the eligibility criteria has been changed arbitrarily and the

same shall lead to denial of the right of the petitioner to seek admission to the seats reserved for State Quota. The petitioner also placed reliance on

the judgment rendered by this Court in Shivam Sharma and others s. State of Himachal Pradesh and others 2018 (4) SCT 668 wherein it was

categorically held that the distinction between bonafide Himachalis, whose parents are in private service/occupation and those whose parents are in

Government Service is arbitrary.

We have heard learned counsel for the both the petitioners, Mr. Ajay Vaidya, learned Senior Additional Advocate General for the State and Mr.

Neel Kamal Sharma, Advocate, for respondent No. 3.

Learned counsel representing the petitioners argued that denial of exemption to petitioners, whose parents are working outside the State on

account of their employment in private sector/private occupation, cannot be allowed to sustain as it is being violative of Article 14 of the Constitution

of India. Learned counsel for the petitioners also persuaded 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 their right to seek admission to MBBS/BDS

courses in the colleges situated in the State, especially when such 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 respondentÂState by

deleting the provision qua the Exemption being provided to the petitioners visÂÃ Âvis 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.

The learned counsel representing the petitioners strongly 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 as they were not able to secure

jobs in the State of Himachal Pradesh. Learned counsel further contended that the prospectus issued by the respondents for Academic Session

2020Â21 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 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 respondentÂState, which

action on the part of the respondents/State is liable to be quashed and set aside.

Per contra, Mr. Ajay Vaidya, learned Senior Additional Advocate General and Mr. Neel Kamal Sharma, Advocate, appearing for respondent No.

3 defended the decision of the respondentÂState 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 cannot be interfered with by this Court. Mr. Ajay Vaidya, learned Senior

Additional Advocate General argued that the words, “private occupation†and Note (1) appended below thereto were reflected inadvertently in

the prospectus for the Academic Session 2020Â21 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 Notice dated 30.10.2020 (Annexure PÂ8). While refuting contention of the learned counsel

representing the petitioners that they were taken by surprise and have been left high and dry, Mr. Ajay Vaidya, learned Senior Additional Advocate

General contended that petitioners were well aware of concession being available upto earlier Academic Sessions. 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)and Note (1) appended below it, from the Academic Session 2018Â19 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 respondentÂ‐

State to continue benefit of exemption to category 3(ii), Mr. Ajay Vaidya learned Senior Additional 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). He further submitted that the petitioners cannot 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 and State being

policyÂ​maker is competent to take any decision in the interest of justice.

The issue involved in these writ petitions is no longer resÂ​integra.

The classifications are required to be made for various purposes and the exercise of classifications cannot be ruled out whole sale as being

unconstitutional. To overcome this, the Courts evolved a principle of permissible classification or reasonable classification based on intelligible

differentia and having rationale nexus with the object sought to be achieved. On this basis we have gone through the respective case of the parties.

It is the case of the petitioners that the impugned withdrawal of exemption given between 2013Â2017 and 2018 is arbitrary and unreasonable and

is liable to be set aside. No doubt the exemption was given from that date till the impugned withdrawal was made by the respondents but what was

included now it has been excluded by withdrawing the exemption. The inclusion and exclusion is for the government to decide on the basis of its own

assessment and policy decision. As per Clause 3(ii) of Part IV(A) exemption was given on the basis of intelligible differential which has not been

challenged by any of the parties. The case of the petitioners is that what was given under Clause 3(ii) of Part IV(A) is unconstitutional and arbitrary

under Article 41 of the Constitution of India.

It is the sole prerogative of the State to make reasonable classification under Article 41 of the Constitution and pass necessary orders of inclusion

and exclusion. On this principle, exemption was given till 2018Â2019. Thereafter it was withdrawn by the State by taking a conscious decision which

cannot be termed as arbitrary and unreasonable.

To supplement the stand of the respondents, it is profitable to refer to the judgment of the Hon’ble Supreme Court in D.P. Joshi vs. State of

M.B. AIR 1955 SC 334, in which exemption given within the State was upheld by the Supreme Court and it was held that it is permissible for the

State to make classification within the State or State to State. The Court found that the classification was based on residence within the State, and the

object of classification was to help bonafide students belonging to the State of M.B. thereby amounting to a concession to residents of the State.

Taking the help of the directive principle contained in Article 41, that promoting education within the limits of its resources was a State obligation, the

classification was held to be just and reasonable and in conformity with Article 14.

In Central Bank of India vs. Ram Narain AIR 1955 SC 36 it has been held as under:

“6…………..""That place is properly the domicil of a person in which his habitation is fixed without any present intention of removing

therefrom.

But even this definition is not an absolute one, The truth is that the term 'domicil' lends itself to illustrations but not to definition. Be that as it

may, two constituent elements that are necessary by English Law for the existence of domicil are : (1) a residence of a particular kind, and

(2) an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be continuous but it

must be indefinite, not purely, fleeting. The intention must be a present intention to reside for ever in the country where the residence has

been taken up.

It is also a well established proposition that a person may have no home but he cannot be without a domicil and the law may attribute to him

a domicil in a country where in reality he has not. A person may be a vagrant as when he lives in a yacht or wanderer from one European

hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicil in one particular territory. In order to make the rule that

nobody can be without a domicil effective, the law assigns what is called a domicil of origin to every person at his birth. This prevails until a

new domicil has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it

again, nevertheless his domicil of origin adheres to him until he actually settles with the requisite intention in some other country.â€​

The Supreme Court in Thote Bhaskara Rao vs. A.P. Public Service Commission, Hyderabad, 1987 (Suppl) 587, in para 6 it has been held as

under:

“6. There is no doubt that the expression ""Government service"" mentioned in the Proviso includes service either under the State

Government or the Government of India. SubÂrule (15)(a) of the definition R. 2 explains that the expression ""recruited direct"" would refer

to a candidate including a person in the service of Government of India or the Government of a State to be recruited directly subject to

certain conditions mentioned therein. The learned counsel for the respondents, therefore, rightly said that a servant under the Government

of India must be included within the scope of the Proviso. Mr. Ramamurthy, learned counsel for the appellant, fairly conceded that the

appellant who is in the service of Hindustan Shipyard and is not serving directly the Union of India cannot take advantage of the Proviso,

if the same as it stands is held to be legally valid. The attack is on its vires on the ground of illegal discrimination. We do not find any merit

in this submission. What is forbidden by the Constitution is discrimination between persons who are substantially in similar circumstances or

conditions. An equal treatment does arise as between persons governed by different conditions and different sets of circumstances. It is

obviously permissible to classify persons into groups and such groups may be differently treated if there is a reasonable basis for such

difference or distinction. Having regard to the difference in the nature of service under the Government and that of the other

services,therefore, a classification based on that fine cannot be struck down on the ground of illegal discrimination. The Proviso in

question must be held to be valid and effective.â€​

In Charanjit Lal Chowdhury vs. The Union of India and others AIR (38) 1951 SC 41, the Supreme Court held:

“64. It must be admitted that the guarantee against the denial of equal protection of laws does not mean that identically the same rules of

law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has

been said by the Supreme Court of America, ""equal protection of laws is a pledge of the protection of equal laws,"" (See Yick Wo v. Hopkins,

118 U. S. at 369), and this means ""subjection to equal laws applying alike to all in the same v. Greene, 216 U. S. 400, 412). In other words,

there should be no discrimination between one person and another if as regards the subjectÂmatter of the legislation their position is the

same. I am unable to accept the argument of Mr. Chari that a legislation relating to one individual or one family or one body corporate

would per se violate the guarantee of the equal protection rule. There can certainly be a law applying to one person or to one group of

persons and it cannot be held to be unconstitutional if it is not discriminatory in its character. (See Willis Constitutional Law, p. 580). It

would be bad law ""if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a

penalty upon them, which is not imposed upon others guilty of like delinquency."" (See Gulf C. and S. F. R. Co. v. El1is, 163 U. S. 150 at

159). The Legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike

with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection but the classification should never be

arbitrary. It must always rest upon some real and substantial ' distinction bearing a reasonable and just relation to the things in respect to

which the classification is made ; and classification made without any substantial basis should be regarded as invalid. (See Southern

Railway Co. v. Greene, 216 U. S. 00 at 412).â€​

In Ram Krishana Dalmia vs. Justice S.R. Tendolkar AIR 1958 SC 538, the Supreme Court held as under:

 “11………. It is now well established that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of

legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be

funded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that

differentia must have a rational relation to the object sought to be achieved by the statute in question. 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. It is also well established by the decisions of this Court that Art. 14 condemns

discrimination not only by a substantive law but by a law of procedure.

The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish Â​

(a) that a law may be constitutional even though it relates to a single individuals if, on account of some special circumstances or reasons applicable to

him and not applicable to others, that single individual may be treated as a class by himself ;

(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there

has been a clear transgression of the constitutional principles ;

 (c) that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to

problems made manifest by experience and that its discriminations are based on adequate grounds ;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest

;

(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of

common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation ; and

(f) 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 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.â€​

The above principles will have to be constantly borne in mind by the Court when it is called upon, to adjudge the constitutionality of any particular

law attacked as discriminatory and violative of the equal protection of the laws.

In the above noted case, it has been held that even a single person can be classified a class for the purpose of classification. In the instant case,

the private service and private occupation has been classified as a separate class hence they cannot be brought for exemption under the State Quota.

The State has got power to make classification for the purpose of exemption under Article 14 of the Constitution of India.

Mr. Ajay Vaidya, learned Senior Additional Advocate General has argued that classification is based upon various considerations like topography

of State, socioÂeconomic conditions of its people, scarcity of good schools, tutors and coaching centres for the students studying in schools situate in

the State. To substantiate his aforesaid argument, Mr. Vaidya further argued that decision of the respondentÂState to withdraw benefit of exemption

from petitioners falling under category 3(iv) shall provide a level playing field to the candidates of Himachal Pradesh. Mr. Vaidya argued that the

petitioners are being benefited by better facilities of educational institutions because they are residing outside the State.

The submission of the respondents is well founded as the local requirement has been made the basis for the purpose of withdrawal of exemption.

At the cost of repetition we have to refer to the judgment of D.P. Joshi (supra) wherein exemption given within the State was upheld by the

Supreme Court and it was held that it is permissible for the State to make classification within the State or State to State. The Court found that the

classification was based on residence within the State, and the object of classification was to help bonafide students belonging to the State of M.B.

thereby amounting to a concession to residents of the State. Taking the help of the directive principle contained in Article 41, that promoting education

within the limits of its resources was a State obligation, the classification was held to be just and reasonable and in conformity with Article 14.

The parents who are working in All India Service or deputation outside the State are under the control of the Government and the parents, who

are working outside the state in private sector or private occupation are not under the control of the Government. Thus they have rightly been

excluded by the State from exemption. Hence the classification is well founded and can, in no way, be said to be an arbitrary action on the part of the

State.

In Vikram Singh Negi vs. State of H.P. (2009) 2 Shim.LC 362 in para 8 it has been held as under:

“8…...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…...â€​

The decision of the respondentÂState 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 organizations, semiÂgovernment 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 respondentÂ‐

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.

The Hon'ble Apex Court in Pradeep Jain v. Union of India, (1984) 3 SCC 654, has held that the 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. In para 14 it

has been held as under:

“14………..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 14must be rejected.

(emphasis supplied).

It is well established 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.

We may record herein that in CWP No. 1353/2018 alongwith connected matters, this Court has held that the policy decision taken by the

respondentÂState 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 respondentÂState in withdrawing benefit of exemption from the aforesaid petitioners and allow the 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 cannot be allowed

to sustain.

The aforesaid judgment rendered by this Court was carried to the Supreme Court in SLP (C) No (s) 23025Â 23026/2018, wherein the Supreme

Court vide order dated dated 29.8.2018 held that the judgment and order passed by the High Court shall not be treated as a precedent.

In view of the discussion and observations made hereinabove, we are not inclined to grant any relief to the petitioners in these Writ Petitions.

Hence the Writ Petitions are dismissed alongwith all pending applications, if any.