Syed Karamat Shah vs State and others

Heard Mr. Tasaduq.

In this petition, moot point for consideration is that the petitioner who had applied for admission to MBBS/BDS courses in pursuance to the

notification No: 6/C/MBBSBDS/CAEEof 1992 dated 1161992 issued for the year 199293 in the open merit category.

2.It is an admitted fact that the notification was issued on 161992 and the last date for receipt of the application forms was 2961992 and the

screening of the application forms was done on 1581992 and thereafter entrance examination was conducted on 591992.

The contention of the petitioner is that though he belongs to the Reserved category of Gujjar and Backerwal as defined under relevant

provisions of law, had applied for such certificate, but same was delivered to him on [SIC] 26.8.1992 and he presented the said certificate

purported to have been issued by Tehsildar on 27.8.1992 before the Interviewing Board, but the same has not been considered and the petitioner

has not been considered under the Reserved category of Gujjar and Backerwal. Instead some other candidate viz. respondent No.4, Mohammad

Yaqoob Tariq has been considered under the said category who had obtained only 112 marks, whereas the petitioner has obtained 119 marks.

Ld. Counsel projects that nonconsideration of the petitioner under the said reserved category on the basis of marks obtained by him and the

certificate issued, and submitted by him, has amounted to nonconsideration, thereby violating the provisions of equality as laid down under Article

14 of the Constitution. Ld. Counsel submits that the right to education is one of the rights which is guaranteed and [SIC] follow and emerge from

the fundamental rights as laid down under Article 21 of the Constitution. So it is not only right of consideration, even right of education which has

been denied to the petitioner for undergoing the higher studies like MBBS/BDS and instead a man with lesser merit has been considered.

Counter affidavit has already been filed by the respondents which is on the file.

In the counter affidavit, the res jiondent/State has pleaded that the petitioner has submitted his application form claiming consideration only under

open merit category and has not claimed consideration under any reserved category. In view of the conditions of eligibility for the purpose of

appearance in the entrance test and in light of the merit of the petitioner in the qualifying examination, the petitioner's application form was

entertained and subsequently he was allowed to appear in the entrance examination conducted by the answering respondent on 5/691992. He did

not claim consideration under any category. Had he claimed any such consideration, the said category certificate issued by the competent authority

was to be annexed with the application form. It is also submitted in the counter affidavit that though the certificate claimed to have been produced

by the petitioner on 2981992 is not in accordance with the SRO 272 as amended from time to time. As per Information Brochure/Instructions

issued by the competent authority for the guidance of conducting of the entrance examination and vivavoce for MBBS/BDS courses, it was clearly

and in express terms emphasized that applications should be complete in all respects. No application form will be entertained in case it is not in

accordance with the rules and regulations and it was enjoined as per Rule 7,222 that incomplete application forms and application forms with

unauthenticated cuttings and over writings shall be summarily rejected without assigning any reason and no intimation shall be given to the candidate

in the event of such rejection.

As per Instruction 8.1.1, it was made clear that before completing the application forms for submission, the candidates are advised to study the

definitions given in this brochure and comply with the same strictly and as per Rule 8.2, the candidate was required to fill the category codes of the

category/categories under which he/she seeks consideration. A note was also affixed in subsection to Rule 8.2 which reads:

In the absence of a category certificate issued by the Competent Revenue Authority candidates shall be considered under 'open merit' category if

other wise eligible for the same.

So this boils down that even if a candidate had claimed admission under some category and has indicated the same in his application form that

he seeks consideration under some category, but was not in a position to furnish any certificate, it was stipulated that his case shall be considered

under open merit category.

Here in the present case, the petitioner had not claimed consideration under any category except under open merit category and his subsequent

production of a valid or invalid certificate in light of the judgments passed by this court in AIR 1988 JandK page 69 and also of the face that the

rules in no way are ultravires to the Constitution. The Information Brochure and the guidelines are only for the guidance of the candidates as well as

of the authorities and in no way deprive the consideration of eligible candidates for undergoing higher studies.

The argument projected by Mr. Tasaduq and quoting in support of his arguments famous case of Unni Krishnan, J.P. and others versus State

of Andhra Pradesh and others decided by the Apex Court on 4.2.1993 and stands reported as J§93(1)SLR 743, wherein their lordships have

held as under:

Right to education, understood in the context of Articles 45 and 41, means;

(a) every child/citizen of this country has a right to free education until he completes the age of fourteen years; and

(b) after a child/citizen completes 14 years,

his right to education is circumscribed by the limits of the economic capacity of the State and its development.

It has also been held by their lordships:

.....that a child (citizen) has a fundamental right to free education upto the age of 14 years.

Further their lordships while elucidating the concept have observed:

.....The citizen of this country have a

fundamental right to education. The said right flows from Article 21. This right is, however, not an absolute right. Its contents and parameters have

to be determined in the light of Articles 45 and 41. In other words every child/citizen of this country has a right to free education until he completes

the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State.

So on the basis of the judgment (supra), the right to education is not being denied to the petitioner. He has been considered in the open merit.

His consideration under reserved category has not been properly projected at the appropriate time. He should have obtained the certificate of

belonging to a category of Gujjar and Bakerwal well in advance. The petitioner claims that by birth he belongs to the Gujjar and Backerwal

community and should have applied for such certificate well in time and obtained a certificate as per norms and procedure laid down in this behalf

by the State for issuance of such certificate. There is a time bound programme given to the authorities for issuance of such certificate and in case

there was any grievance felt by the petitioner that his certificate was not being issued to him well in time and in accordance with law, he should have

agitated the matter before higher authorities mentioned therein. It takes years for a person to complete his studies and to be able to compete for

entrance examination for admission to MBBS/BDS courses. It is not just by fortnight that he comes and sits in the examination. He knows fully well

and prepares himself there for [SIC] appearing in such entrance examination and puts in his efforts and when he comes for higher studies in special

subjects, he plans accordingly. It is not just overnight that one fine morning a person rises from sleep and decides that he will sit in the entrance

examination for admission to MBBS/BDS course and then apply for a certificate under the category to which he may genuinely belong. There is

some time bound programme which takes place for the authority to decide and issue the requisite certificate. The petitioner should have taken care

of all these formalities before claiming consideration under the said reserved category.

As a student and citizen of this country, the petitioner has been given education to which he has a fundamental right and furthermore he has

been considered after having appeared in the competative test/ examination. His merit has been found only 119 in the open/category. So he cannot

now turn round and say that he has not been considered.

Much was argued by Mr. Tasaduq that on the date of examination/interview, the petitioner produced the category certificate ans was thus

eligible at that time as his certificate was issued by the competent authority only on 26.8.1992 and was as such eligible to be considered under the

reserved category of Gujjar and Backerwal. The point of time regarding eligibility of a person, whether a person/candidate is eligible on the date of

interview/examination or on the date of filing of application form came up for consideration in a reference before a Division Bench of this court in

OWP No: 926 of 1992 titled Dr. Parivir Shanker Parsad versus Competent Authority and others decided on 13.5.1993, wherein the question

was replied in the following words :

.......a candidate must satisfy prescribed eligibility for admission to MD/MS courses in two Medical Colleges of the State on or before the date he

submits his application.

Thus on the ratio of this judgment, the eligibility criteria is to be determined on the date of submission of the application form and not on the

date of interview or the examination. The argument raised by Mr. Tasaduq accordingly stands replied.

Before parting with the judgment, it may not be out of place to make a mention of a judgment passed by their lordships of the Apex Court in

Civil Appeal Nos: 33643366 of 1993 titled the State of Punjab and others versus Renukha Singh and others. The order passed by the apex court

reads:

Accordingly the direction given to admit respondent No. 1 Renukha Singh against the one vacant seat is set aside. Since we are of the opinion that

against that seat, respondent No.2, Savita Gera, has a better claim because her application was in proper form alongwith proper certificate that she

belonged to a backward area. No such claim had been made on behalf of respondent No. 1, Renukha Singla and no certificate in support of said

claim had been filed on her behalf. Respondent No.2 Savita Gera, should be admitted against the seat which had fallen vacant due to withdrawal of

the admission by Sanjiv Goyal"" (Emphasis added).

For the foregoing reasons, no good ground is made out for admission of this petition, which is accordingly dismissed in limine. However

respondents may consider the petitioner for nomination if otherwise eligible.