IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W. P. No. 1624 of 2009 Date of decision: 28. 7. 2009 Vikram Singh Negi …..Petitioner Versus State of H.P. and others ……Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . yes For the Petitioner: Mr. Varun Thakur, Advocate. For the respondent : Mr. R.M. Bisht, Addl. Advocate General, with Mr. Vikas Rathore, Dy. Advocate General, for respondent Nos. 1, 3 and 4. Mr. B.C. Negi, Advocate, for respondent No. 2. Deepak Gupta, J (Oral). By means of this writ petition, the petitioner challenges the provision whereby the children of bona fide Himachalis who were serving as the employees of other State Governments or Autonomous and Semi Government organizations of such States are permitted to apply for and appear in the Combined Entrance Test for Medical and Dental Colleges. In the State of Himachal Pradesh, admission to Medical and Dental Colleges is made 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - on the basis of a combined entrance test. The conditions are laid down in the prospectus. Out of total number of seats, 85% seats are reserved for the State quota and 15% to be filled up on the basis of All India Merit as per directions given by the Apex Court. The eligibility criteria mentioned in the prospectus provides that for the State quota seats, only children of bona fide Himachalis and Himachal Pradesh Government employees and employees of Autonomous Bodies, wholly or partially financed by the Himachal Pradesh Government will be eligible to apply. It is further laid down that these students must have passed at least two, out of four examination i.e. Middle or equivalent; Matric or equivalent; 10+1 or equivalent; and 10+2 or equivalent from Schools situated within the State of H.P. Certain exemptions are provided e.g. for Himachali students, who are admitted to Navodya Schools, outside Himachal Pradesh; Children of Defence personnel and Ex-serviceman are also exempted from this condition. Children of employees of Central Government including the Union Territory and children of employees of Autonomous Organizations of the Central Government are also exempted from the condition of having passed two, out of four examinations from Schools situated within the State of Himachal Pradesh. Similar, exemption from the year 2007-2008 has been granted to children of bona fide Himachalis, who are employed with other State Governments or are employees of the - 3 - Autonomous or Semi Government bodies of other State Governments. The petitioner is aggrieved by this condition. It would be apposite to refer to eligibility clauses 1 to 3:- “1. Children of bonafide Himachali/Himachal Govt. employees and employees of autonomous bodies wholly or partially financed by the Himachal Pradesh Government will only be eligible to apply for competing for admission to MBBS/BDS Courses through Entrance Test in Government Medical/Dental colleges including 50% State Quota seats in Private un-aided Dental Colleges situated in Himachal Pradesh. They should have passed at least two of the following examinations from the recognized schools or colleges situated in the State of Himachal Pradesh and affiliated to ICSE/CBSE and H.P. Board of School Education or equivalent Boards/Universities established by law in India. (a) Middle or equivalent (b) Matric or equivalent (C) 10+1 or equivalent (d) 10+2 or equivalent 2. The bonafide Himachali students who are admitted to Navodya Schools situated in Himachal Pradesh and who pass matric or +2 examination under the exchange programme from other Navodya Schools in the Country shall also be eligible for admission to the above courses. 3. Following categories of candidates are exempted from the condition of passing the examinations from recognized schools affiliated to ICSE/CBSE/HP Board of School Education situated in - 4 - Himachal Pradesh provided that the candidates of these categories should be bonafide Himachali and their parents be living outside Himachal Pradesh on account of their service and in their case non- schooling in H.P. shall not debar them from competing against any of the seats whether reserved or otherwise (except backward area seats):- (i) Children of Defence Personnel/Ex-servicemen Or (ii) Children of Employees of Central Government including U.T./ Other State Governments and children of employees of the Autonomous Organizations/Semi Government Bodies of Central Government and Other State Governments. Or (iii) Children of Himachal Government Employees/Employees of wholly owned H.P. Govt. undertakings/Autonomous Bodies.” Shri Varun Thakur, Advocate has strenuously contended that the persons who are working in other State Governments or Semi Government and Autonomous Bodies of other States Government have willingly left the State out of their own volition and therefore, the exemption granted in their favour is illegal and violative or Article 14 of the Constitution of India. He has placed reliance on the judgment of the apex Court in Anant Madan versus State of Haryana and others (1995) 2 SCC 135; - 5 - Nishant Puri versus State of H.P. and others AIR 1999 SC 227 and a judgment of this court delivered in Gagan Deep vs. State 1996 (1) Sim. L.C. 242. In Anant Madan’s case, the apex Court was concerned with the conditions laid down in the State of Haryana which provided that to be eligible for admission in the Medical Colleges, the students must have studied class 10, 10+1 and 10+2 in a recognized institution of the State of Haryana. This was a condition laid down by the Government and challenged by certain students. This condition was upheld by the apex Court on the ground that the State was entitled to make such reservation. In Nishant Puri’s case, the petitioner’s mother was an employee of the State of H.P. She went on deputation to the Central Government and Nishant Puri consequently studied outside Himachal Pradesh. His candidature was rejected on the ground that he did not qualify the requisite number of examination from the Schools situated within the State. He laid challenge to this and his petition was dismissed by this Court. In Appeal filed before the apex Court, it was held that the mother of the appellant went on deputation on her own request on health ground to the Centre but continued to be an employee of the State. She maintained her lien in the State of H.P. and therefore would - 6 - fall under the category of State Government employee and could not be treated as a Central Government employee. Therefore, her son was not entitled to claim exemption from the conditions laid down. In our considered view this judgment has no relevance to the case in hand. In Gagandeep’s case (supra), a Division Bench of this court upheld the validity of the eligibility criteria laid down in the prospectus whereby at that relevant time it was provided that the students must have passed two out of three examinations i.e. Middle or equivalent, Matric or equivalent and 10+2 or equivalent from the Schools situated within the State of H.P. The question whether children of bona fide Himachalis, who were employees of some other States or working in Autonomous/ Government Organizations of such State Governments should be given such benefit or not was never considered in any of these cases. It is contended on behalf of the petitioner that the parents of such students, who were working with other States have left the State of H.P. of their own volition and they have attained better quality of education outside the State and therefore, they should not be given the benefit of such an exemption. We are unable to accept this contention. 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 - 7 - 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. What is the extent of reservation to be made is something to be decided by the State. Supposing the State in its wisdom decides that the condition regarding passing of some examinations from Schools situated within Himachal should be done away with and deletes the same from the prospectus. Can any person have a right to claim that the State must be compelled to retain this condition? The answer has to be an emphatic no. Article 14 which pervades through our constitution provides equal opportunity to all. Articles 15 and 16 of the Constitution of India are exceptions to Article 14. They cannot override Article 14 itself. That is why the Apex Court has repeatedly held that the reservation normally can never exceed 50%. What is the extent and manner of reservation is something for the Executive to decide. The court can only interfere if it is shown that powers have been exercised arbitrarily or in violation of the Constitution of India. In the present case, we find that the exemption granted to children of bona fide Himachalis serving other States or Semi Government or Autonomous Organizations under - 8 - different State Governments is not at all violative of the provisions of Article 14 of the Constitution of India. We may take judicial notice of the fact that all educated persons belonging to H.P. cannot be given employment in the State. Due to this reason, some of them have to perforce take up jobs out side the State of Himachal Pradesh. We see no reason why the children of these persons, who have taken up jobs outside the State of H.P., but who are bona fide residents of Himachal should be denied admission to the Medical Colleges within the State of Himachal Pradesh. The roots of these people are in Himachal Pradesh and therefore, the State has rightly decided to extend the benefit of the exemption to such persons. There is no merit in this writ petition which is accordingly dismissed. In view of the dismissal of the main petition, all miscellaneous application (s) shall also stand dismissed. (Deepak Gupta),J. July 28, 2009 (Surinder Singh),J (cm)