Civil Writ Petition No.13092 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13092 of 2011 Date of Order: September, 2011 Joel D. Masih ...Petitioner Versus Baba Farid University of Health Science and others ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present:Mr. Ramneek Vasudeva, Advocate for the petitioner. Mr. D.S.Patwalia, Advocate, with Mr. Ravison, Senior Law Officer,CMC, Ludhiana, for respondent nos. 2 and 3. RAJIVE BHALLA, J. The petitioner, a candidate for admission to the MBBS course, offered by the Christian Medical College, Ludhiana, in the category of Christian Minority Punjab candidates, inter-alia prays for quashing of clause 11(a) of the Prospectus, Annexure P-4, which requires a christian candidate to obtain a mandatory sponsorship letter from sponsoring bodies/churches, referred to in the prospectus, failing which admission shall not be granted. Counsel for the petitioner submits that the petitioner is a Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -2- christian by birth, born into a christian family on 30.11.1992, baptised as per the certificate of baptism (Annexure P-2), is member of the United Church of Northern Indian since birth as evidenced by the Church membership certificate, Annexure P-3, has also cleared the Bible test, which is mandatory for Christian candidates and fulfills all eligibility conditions required for obtaining admission as a Christian Minority-Punjab candidate except for the condition contained in clause 11(a) of the prospectus that requires a Christian candidate to obtain a sponsorship certificate from bodies/Churches referred to in the prospectus. Counsel for the petitioner further submits that the petitioner's father is a priest in a Church. With his help, the petitioner approached various sponsoring bodies but was denied a sponsorship letter as he could not meet their demands. The petitioner, therefore, left the column, relating to sponsorship, blank while submitting his form, for the entrance examination. The respondent-college did not raise any objection, issued an admit card and allowed the petitioner to sit for the qualifying examination, held on 27.05.2011. The petitioner has secured third position in the category of Christian Minority-Punjab. The petitioner was asked to appear for counseling/interview on 18.07.2011. The petitioner produced all relevant documents and affidavits except the sponsorship letter. The petitioner was denied admission on the ground that Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -3- he has failed to produce a sponsorship letter from any of the sponsoring bodies/churches referred to in the prospectus. The petitioner approached the respondent-college on 19.07.2011 with a request to allow him to deposit fee but the respondent- college refused to accede to his request on the ground that the petitioner does not possess a sponsorship letter. The petitioner addressed a letter dated 20.07.2011 to the respondent-college narrating the entire facts and circumstances but no action was taken. Counsel for the petitioner further argues that the sponsorship letter required under clause 11(a) of the prospectus, is issued if a candidate furnishes an undertaking to serve any hospital, institution run by the sponsoring agency for a period of two years. The sponsorship letter is, therefore, an eligibility condition as it disqualifies a candidates who does not possess a sponsorship letter. Clause 11(a) perpetuates a reservation within Christian Minority candidates by creating a reservation in favour of candidates who obtain a sponsorship letter. Clause 11(a) in operation allocates seats to the sponsoring bodies/churches, as without their letter a candidate cannot be granted admission. It is further argued that though the right to prescribe the procedure for admission, the nature of test etc. falls to the jurisdiction of the respondent-college, a minority institution protected by 30(1) of the Constitution of India, the rights of a minority institutions are not unbridled and have to Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -4- be tested on the principle whether the procedure so adopted is fair, transparent, non-exploitative and must significant of all whether it has any nexus with the examination or for ensuring that a candidate belongs to the minority. The condition requiring a candidate to obtain a sponsorship certificate has no nexus with the selection process, the admission test or for identifying a bonafide christian and is, therefore, not protected by Article 30(1) of the Constitution. It is further argued by reference to the judgment in P.A.Inamdar v. State of Maharashtra, 2005(5) S.L.R., 409, that though the right of a minority institution to regulate the process of admission for the benefit of the minority, it represents, is protected by Article 30(1) of the Constitution, the protection does not extend to prescribing a condition of eligibility that has no nexus with the course offered, the selection criteria, the examination to be conducted and the marks to be awarded. It is prayed that as Clause 11(a) is unreasonable, unfair, arbitrary and exploitative, it may be quashed and the respondents may be directed to grant admission to the petitioner. Counsel for respondents no.2 and 3, however, submits that the writ petition should be dismissed on a short ground that the petitioner has participated in the process of selection and having failed therein, cannot turn around and challenge clause 11(a) of the prospectus. The prospectus was issued in March, 2011. The petitioner was aware of clause 11(a), as is apparent Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -5- from his averments in the writ petition. The writ petition should be dismissed on the ground of gross delay. Even otherwise, the selected candidates have joined and there is no vacant seat in the category of Christian Minority Punjab, to which the petitioner can stake a claim. It is also pointed out that the petition is liable to be dismissed for non-joinder and mis-joinder of necessary parties as the petitioner has not impleaded the last selected candidate, namely, Eldo Eliyas, who was admitted from the combined merit list against a vacancy in the Christian Minority- Punjab. On merits, counsel for respondent nos.2 and 3 submits that clause 11 (a) prescribes a legal and valid condition that requires a candidate to obtain a sponsorship letter/certificate from any one of the 25 sponsoring bodies/churches, referred to in the prospectus. The object of prescribing such a condition is to ensure that candidates serve the Christian community. In previous years, though candidates executed bonds to serve the college, the bonds were violated with impunity. The College, therefore, devised a method, to ensure that candidates selected in the reserved category serve a Hospital or an Institution, run and managed by bodies, referred to in the prospectus. It is further submitted that the mere fact that a candidate is a member of particular Church, has been Baptised or has passed the Bible test does not absolve him of his obligation to obtain a sponsorship certificate. It is further submitted that the eligibility Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -6- condition, requiring a candidate to possess a sponsorship certificate, does create a reservation within christian candidates or a reservation in favour of sponsoring agencies. The sole object is to ensure that candidates serve the Christian community, through the sponsoring agencies and not to allot seats to the sponsoring agencies. It is argued by reference to Article 30(1) of the Constitution of India that a minority institution may devise its own procedure for admission. The only circumstance in which a court may interfere is if the admission procedure is not fair, transparent or is exploitative. It is further argued by reference to the judgment in P.A.Inamdar case (supra) and by a reference to an unreported judgment of High Court of Judicature at Madras that the right of a minority institution to reserve seats for its own community and to prescribe the mode and manner of eligibility and admission, rests solely with the minority institution. The petitioner has failed to address any argument, that the eligibility condition prescribed in clause 11(a) of the prospectus, is illegal, void, is not fair, transparent and or exploitative. The writ petition should, therefore, be dismissed. I have heard counsel for the parties and perused Clause 11(a) of the prospectus. Apart from the preliminary objections, that shall be dealt with separately, the primary question that falls for consideration is whether Clause 11(a) of the prospectus, which provides an Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -7- eligibility condition requiring a candidate to obtain a sponsorship letter from a sponsoring body/Church can be said to be fair, transparent and non-exploitative and, therefore, immune from challenge on the ground that it falls to the discretion of a minority institution while prescribing the procedure for admission, duly protected by Article 30(1) of the Constitution of India. Any answer to this question would require an answer to the question whether Clause 11(a) prescribes a reservation within the Christian community and operates to allocate seats to sponsoring bodies/churches referred to in the prospectus. The Christian Medical College is admittedly, a minority institution, and like all other minorities, whether based on religion or language has a right to establish and administer educational institutions of their choice. The rights of minorities to establish and administer educational institutions and the protection provided by Article 30(1) of the Constitution of India, has been the subject matter of repeated challenges before courts and may be set out by quoting a few paragraphs from the judgment of the Hon'ble Supreme Court in P.A. Inamdar and Ors. v State of Maharashtra and Ors.(supra):- “Q.5(a) Whether the minorities rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students? Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -8- A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal- administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.” A reference may also be made to paras 32 and 33 of a Division Bench judgment of this Court reported as Vikram Singla and others v. State of Punjab and others, 2006(1) S.L.R., 376, wherein after referring to the judgment of Hon'ble Supreme Court in Islamic Academy of Education and Another v. State of Karnataka and Others, 2003(6) SCC, 697, it was held as follows:- “32. No doubt, the CMC being a minority institute enjoys certain rights under Article 30 (1) of the Constitution of India but those rights and privileges are not unbridled. This issue Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -9- was examined by the Hon'ble Supreme Court in the judgment reported as Islamic Academy of Education and another vs. State of Karnataka and others, 2003(6) SCC 697. It was held in para 121 as under:- “121. The right to administer does not include the regulation. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions.” Even in the recent judgment of P.A.Inamdar's case (supra) the Hon'ble Supreme Court was pleased to observe (para 137) “Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor, subject to its being fair, transparent and non- exploitative.” It was also observed (para 122) as under:- Apart from the generalised position of law that the right to administer Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -10- does not include the right to maladminister, and additional source of power to regulate by enacting conditions accompanying affiliation or recognition exists. A balance has to be struck between the two objectives : (i) that of ensuring the standard of excellence of the institution, and (ii) that of preserving the right of the minority to establish and administer its educational institution. Subject to a reconciliation of the two objectives, any regulation accompanying affiliation or recognition must satisfy the triple tests : (i) the test of reasonableness and rationality, (ii) the test that the regulation would be conductive to making the institution an effective vehicle of education for the minority community or other persons who resort to it, and (iii) that there is no in-road on the protection conferred by Article 30(1) of the Constitution, that is, by framing the regulation the Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -11- essential character of the institution being minority educational institution, is not taken away”. 33. It is clear, therefore, that even minority unaided institutions are bound by some regulations. They have to be fair and reasonable. They cannot take the shelter of being minority institution and violate the law blatantly, as has been done by the CMC in this case.” The later judgment was recorded in a case filed against the CMC, Ludhiana, the contesting respondent, in the present case. Before proceeding to map out the contours of the controversy, it would be appropriate to briefly recapitulate the facts. The Christian Medical College is a minority institution, protected by Article 30(1) of the Constitution of India. The Christian Medical College is entitled to set up educational institutions and manage its affairs without interference by the State. The College has freedom to prescribe the mode and manner of admission, provided it is not arbitrary, is fair, transparent and non-exploitative. The protection provided by Article 30(1) of the Constitution of India does not extend to protecting an eligibility condition that has no connection with the admission, the examination, the eligibility or with identifying a Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -12- bonafide Christian. The College reserves a certain amount of seats for christians possessing a Punjab domicile. In order to identify bonafide christians, Clause 11(a) of the prospectus requires a christian candidate to submit a baptism certificate issued by Church, a certificate that he belongs to a particular Church and to obtain a sponsorship letter from Churches/bodies referred to in the prospectus. The prospectus also requires a christian candidate to pass a bible test. The petitioner was admittedly born into a Christian family, was baptised in a Church, belongs to a Church and has passed the Bible test, but for want of a sponsorship letter, as required by clause 11(a) of the prospectus, has been declared ineligible. The petitioner was allowed to sit for the entrance examination for MBBS, without the sponsorship letter and is ranked third amongst, Christian Minority-Punjab candidates. As per the chapter titled “Admission Programme”, a Christian (Minority Category) candidate who desires to apply under this category is required to produce a sponsorship letter issued by one of the sponsoring agencies of the Christian Medical College Ludhiana Society, as a condition of eligibility. The chapter relating to Christian (Minority Category), uses the expression “Christian Sponsored Category” whereas the reservation set out in the part titled as “Distribution of Seats- 2011” uses the expression “Christian Minority-Punjab”. A relevant extract from the chapter titled as “Admission Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -13- Programme”, reads as follows:- “Admission Programme” Christian (Minority Category) Applicants & Service Agreement Candidates who desire to apply under the Christian sponsored category should indicate in the ICR form and will have to take a Bible Test. Such candidates are required to be sponsored by one of the sponsoring agencies of the Christian Medical College Ludhiana society for eligibility in the sponsored category. (emphasis supplied) Candidates can apply to one of the sponsoring agencies of the Christian Medical College Ludhiana Society for sponsorship. List of members is given in the Annexure III. Toward this, all MBBS, BDS, and B.Sc. Nursing candidates selected through UG AWT 2011 in this category are required to enter into a service agreement without which admission will not be granted. Service Agreement for MBBS and B.Sc. Nursing candidates is for a minimum period of two years and for BDS candidates, 1 year, after completion of the course in a hospital, or institution managed by Christian Medical Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -14- College Ludhiana Society or its member Body/Church In keeping with the mandate of the Christian Medical College Ludhiana Society to reach out to all states with emphasis on the rural underserved and unreached areas/communities of our nation, to provide training facilities to candidates who will dedicate themselves to the healthcare of these states they represent, which would otherwise have been deprived, seats in MBBS have been earmarked area-wise for Society Sponsored candidates from States and Union territories (pg.10). Candidates applying to these categories should clearly indicate this in the ICR form by correctly filling the domicile field. Admission will be entirely on merit, based on the Admission Written Test. Candidates must provide the certificates mentioned below to be considered for admission in Sponsored Christian (Minority) category. The following original certificates must be available at the time of scrutiny of certificates otherwise the candidature will be cancelled. Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -15- 1) Sponsorship Letter from sponsoring body/church signed by authorised signatory only. 2) Baptism certificate 3) Letter from the Pastor regarding church membership with dates (made after 28.02.2011 in the prescribed format See Annexure -1 Sample-12) 4) Domicile certificate issued and certified by the competent authority. Note: 1. Christian candidates desirous of sponsorship should only apply to one sponsoring body/church. In the event that a candidate has obtained more than one sponsorship, the first one to reach the office of Registrar will be considered. 2. It is mandatory for all Christian applicants to pass the Bible Test for considering them under the Christian Minority categories. Christian applicants who fail in the Bible Test, will not be considered under the Christian Minority category.” The chapter titled as “Admission Programme” provides Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -16- that a candidate seeking admission as a christian sponsored candidate, an expression that does not appear in the chapter titled as “Distribution of Seats” is required to enter into a service agreement, with agencies/churches referred to in the prospectus, who shall after the candidate executes such an agreement, issue a sponsorship letter, without which admission shall not be granted. For a christian candidate to become eligible he must produce a certificate issued by one of the sponsoring bodies/churches of the Christian Medical College Ludhiana Society(as detailed in the prospectus), failing which he shall be rendered ineligible for admission. Clause 11 of the prospectus reads as follows:- “11. For Christian candidates: a. Sponsorship letter from sponsoring body/church(for sponsored candidates only) b. Baptism certificate c. Church membership.” The second and the third conditions, namely, a baptism certificate and a letter from a Pastor regarding Church membership are required, so as to ascertain whether a candidate is a bonafide christian and, therefore, necessary for determining his eligibility as a christian candidate. In furtherance of this object the prospectus requires a christian candidate to pass a Bible test. Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -17- Clause 11(a) of the prospectus requires a candidate to obtain a sponsorship letter as an “Eligibility” condition. The object of the sponsorship letter, as pointed out by counsel for the college and as referred to in the prospectus is to ensure that Christian candidates serve the sponsoring body for a period of two years, after their graduation. The object underlining this condition is laudable and even necessary to ensure that doctors, who avail admission against seats kept reserved for christians, serve their community. The condition, however, does not advance the object of identifying a bonafide christian, of protecting reservation for christian candidates or in any manner facilitating the admission process or the entrance examination. The object of clause 11(a), plainly put, is nothing more than an attempt to obtain a binding service bond that would operate after the candidate completes the MBBS course. The respondent-college, a minority institution, may legitimately prescribe conditions to ensure that a candidate applying under the category of christian minority is a bonafide Christian. The respondents have in fact prescribed three such conditions, namely, a Baptism Certificate, a certificate showing membership of a Church, and the passing of a Bible test. The condition requiring a candidate to obtain a certificate from a sponsoring agency, in my considered opinion, has no nexus with the reservation provided for christian candidates as it does not foster the admission process, or help in identifying a christian Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -18- candidate. The clause merely ensures that a candidate executes a service bond under pain of being declared ineligible. A service bond, though, permissible in law, cannot be set down as a pre- condition to eligibility, so as to render an eligible candidate ineligible. In addition, the condition that only those candidates would be eligible as have obtained a sponsorship letter, in essence ends up reserving seats for sponsoring bodies/Churches as their letters, would determine the eligibility of a christian candidate. By requiring a candidate to obtain a sponsorship letter from named churches/bodies, as a pre condition, to admission the respondents have conferred the power to, render ineligible, a candidate, otherwise eligible and duly qualified. An eligibility condition, to be valid must disclose a reasonable nexus, with the object, in this case reservation for christian candidates. The condition ,as framed, discloses an attempt to ensure that a christian candidate serves the community after graduation and not to ensure that the candidate is a bonafide christian. The right of a minority institution to administer its affairs and for that purpose to ensure that candidates belong to its religion, language or denomination is protected by Article 30(1) of the Constitution of India. Where, however, a minority institution prescribes a condition that has no nexus, with the admission or the identity of a minority candidate, such a condition may legitimately be termed as unfair, exploitative and, Kumar Naresh N 2011.09.21 12:22 verify High Court Chandigarh Civil Writ Petition No.13092 of 2011 -19- therefore, unsustainable in law. The condition requiring a candidate to obtain a sponsorship letter, in my considered opinion, imposes an eligibility condition, that does not stand the test of fairness, is arbitrary, exploitative and, therefore, cannot form part of the eligibility criteria. As a consequence, the part of the prospectus that requires a candidate to obtain a sponsorship letter from bodies/Churches referred to in the prospectus and Clause 11(a) of the prospectus are unfair, exploitative, arbitrary and have to be quashed. As regards, the preliminary objections, the fact that the petitioner may not have impleaded the effected candidate or that the petitioner was aware of the condition in the prospectus, or that the petition is belated are irrelevant and, therefore, cannot be put forth in defence of an illegality in the prospectus, particularly when this condition has no nexus with the eligibility criteria. Even otherwise, the vacant seat was filled up during pendency of the petition by diverting the vacant seat in the Punjab Christian Minority category to an All India Christian Category candidate. The respondents were aware of the pendency of the writ petition and should have in all fairness to the Court, awaited the outcome of the writ petition but have