Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 47 OF 2009 (MS) Dr. Ganga Prasad Gairola ………….Petitioner. Versus Dean (Ayurved) Rishikul Government Ayurvedic College, Rishikul / Gurukul, Haridwar and another. ……….Respondents. Mr. C.D. Bahuguna, Advocate for petitioner. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for respondents. 23rd June, 2009 Hon’ble Sudhanshu Dhulia, J. Petitioner did his Bachelor of Ayurvedic Modern Medicine and Surgery Degree (hereinafter referred to as the “BAMS”) from Gurukul Kangadi, Ayurvedic College, Haridwar in the year, 1982. After completing the said course for five years, in the year, 1984-85 the petitioner got admission in a Master degree course in Medical Science in Ayurved known as “Ayurved Vachaspati” in the subject “Ras Shastra Bhaishjya Kalpana” in Rajasthan University. The aforesaid Master degree research course was for a period of three years. It is the contention of the petitioner that he has already completed first year in the year, 1987 and after completing his first year, he was appointed as a Medical Officer (Ayurved) in a Govt. Hospital in district Tehri Garhwal in the erstwhile State of U.P. (presently in the State of Uttarakhand). According to the petitioner and as per the averments in the writ petition, the petitioner in the year, 2004 finally made up his mind to complete his left out research course of second part (second and third 2 year course) of Master degree in Ayurved from Rishikul Govt. Ayurvedic P.G. College, Haridwar, which is affiliated to H.N. Bahuguna, Garhwal University, Srinagar, Garhwal. As per the own admission of the petitioner although he had done first year post graduation course in the year, 1987 from a different State and a different University, in the year, 2004 he suddenly decides to do the 2nd year and 3rd year course from a different University and in a different State. This can be done according to the petitioner, since the syllabus of this post graduate course is common throughout the country. It is alleged by the petitioner that although there is a long gap of now more than twenty years, there is no bar against the petitioner for pursuing his post graduation course and the respondents are denying this to the petitioner for wholly arbitrary reasons. It is also the contention of the petitioner that this denial amounts to a denial of fundamental right of the petitioner, as according to the counsel for the petitioner “right to education” is a fundamental right. The petitioner asserts that there is a common syllabus and course throughout India for this course and there was no legal impediment in pursuing his course even after a gap of such long years. Accordingly when the petitioner applied for a migration certificate from the University of Rajasthan, Jaipur, it was given to the petitioner. However, when the petitioner sought admission in the post graduation course in Rishikul Govt. Ayurvedic P.G. College, Haridwar, he was told that first he must obtain permission from the H.N.B. Garhwal University as the degree ultimately has to be granted by the H.N.B. Garhal University. Hence, he had earlier approached the H.N.B. Garhwal University but since no action was being taken 3 by the University, the petitioner had filed a writ petition bearing No. 513 of 2007 (MS) before this Court, which was disposed of vide order dated 30.5.2007 by a learned Single Judge of this Court with the direction to the H.N.B. Garhwal University to decide the representation of the petitioner. On the said direction of this Court, a decision was taken by the Registrar, H.N.B. Garhwal University vide its order dated 14.8.2008 directing the Dean (Ayurved) Rishikul Government Ayurvedic College, Rishikul / Gurukul, Haridwar to take decision on this matter. However, the petitioner now contends that although there are directions of the Registrar, H.N.B. Garhwal University, no decision has been taken by the Dean (Ayurved) Rishikul Government Ayurvedic College, Rishikul/Gurukul, Haridwar and therefore, he has filed this writ petition with the following prayer: “I. Issue a writ, order or direction in the nature of Mandamus commanding the respondents to grant admission to the petitioner in the Second part research course of Master degree in Ayurved, popularly known as ‘Ayurved Vachaspati’, in the subject-Ras Shastra Bhaisajya Kalpana, commencing from July-August 2009 in the Rishikul Government Ayurvedic College, Rishikul/Gurukul, Haridwar. II. Issue any other writ order or direction, as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. III. Award cost of the present writ petition to the petitioner.” In its counter affidavit filed on behalf of respondent no. 2 i.e. Principal, Rishikul Government Ayurvedic College, Rishikul / Gurukul, Haridwar, it has been stated 4 that the petitioner has only done his first year post graduation research course in the year, 1987 from Rajasthan University and thereafter he joined medical services (Ayurved)) in the erstwhile State of U.P. and in the year, 1991, the petitioner had made a request to Deputy Director (Administration), Ayurvedic and Unani Service, U.P. Lucknow requesting that the permission may be granted to him to pursue his second year research course in the University. It is stated that the Deputy Director (Administration), Ayurvedic and Unani Service, U.P. Lucknow vide its letter dated 28.12.1991 granted the petitioner such permission provided he continues as Medical Officer and in case of any obstruction in the medical duty, the permission would be recalled. This is a fact which is admitted by the petitioner in his rejoinder affidavit. However inspite of such a permission, the petitioner never sought transfer from Rajasthan University, nor did he pursue his 2nd year post graduation research course inspite of the said permission earlier. Meanwhile, the new State of Uttarakhand was created and petitioner being in service of Uttarakhand Government wrote a letter on 19th February, 2004 to the Chief Secretary, Govt. of Uttarakhand to nominate him for admission in MD second part post graduate research course in the Rishikul Govt. Ayurvedic Post Graduate College, Haridwar in the subject “Ras Shastra Bhaisajya Kalpana”. Since there was no provision for pursuing the second part research course in post graduation after a gap of 20 years, nor there was any such justification, such a request was not granted. The respondents have contended that the prayer of the petitioner in the writ petition is wholly unjustified as there is no reason for granting such a permission to the 5 petitioner to pursue his studies after a gap of 20 years. Merely because the petitioner has obtained a migration certificate or there is a direction by the H.N.B. Garhwal University to the concerned college to take a decision in this matter, no right accrues to the petitioner. In fact logic and reason justify the stand of the respondent in the present case contends the learned Additional Chief Standing Counsel as it is wholly unreasonable to allow the petitioner to pursue the course, which the petitioner has left midway more than 20 years earlier. The petitioner is seeking admission to a course midway in second year, which he had voluntarily left more than 20 years earlier, and if such permission is being denied, it is perfectly in order. The prayer of the petitioner is wholly unreasonable and misconceived, contends the learned Addl. Chief Standing Counsel for the State Sri K.P. Upadhyay. The learned counsel for the petitioner Mr. C.D. Bahuguna has however submitted that the “right of education” is a Fundamental Right of the petitioner as held by the Hon’ble Apex Court in Miss. Mohini Jain Vs. State of Karnataka and others AIR 1992 SC 1858 and Unni Krishnan J.P. and others Vs. State of A.P. and others AIR 1993 SC 2178. The contention of the counsel for the petitioner is that the respondents by denying the admission to the petitioner in the year, 2004 in second part of post graduation research course in Rishikul Government Ayurvedic College, Haridwar, have violated the fundamental right of the petitioner and therefore, to that extent the action of the respondents being violative of the fundamental right of the petitioner, a mandamus has to be issued against the respondents for this purpose. This argument of the petitioner is 6 entirely misconceived. The right to admission in a post graduate medical college is nobody’s right, leave aside a fundamental right. This argument has to be rejected at the very threshold itself. More importantly this is not the law laid down by the Apex Court as is being contended. In the case of Mohini Jain (supra), right to education was declared as a fundamental right, however, although the right to education was declared as a fundamental right, the petitioner, who was seeking admission in a medical college, was denied admission in the medical college as she could not get admission to the college on merit. The relevant portion of the judgment needs to be quoted below: “31. Although we have struck down the capitation fee and allowed the writ petition to that extent, we are not inclined to grant any relief regarding admission to the petitioner. She was not admitted to the college on merit and secondly the course commenced in March-April, 1991 and we see no justification to direct respondent 3 the medical college to admit the petitioner. The writ petition is allowed in the above terms with no order as to costs.” Moreover, the said ratio of the said judgment has been considerably diluted in the judgment of Unni Krishnan (supra), a constitution Bench was in fact constituted to examine the correctness of the decision rendered by a Division Bench of the Supreme Court in the case of Mohini Jain Vs. State of Karnataka (supra). In that case, the majority view has been that the right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 of the Constitution of India must be construed in the light of 7 the directive principle in Part IV of the Constitution” and the majority view further states: “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.” Therefore, the right to education is a fundamental right only as far as the directive principles provide as laid down under Article 41, 45 and 46 of the Constitution of India and more particularly Article 45, which reads as under: “45. Provision for free and compulsory education for children.—The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.” Therefore, in short as held by the majority view in Unni Krishnan (supra), the right to education is a fundamental right only to the extent that free and compulsory education for all children until they complete the age of 14 years. The present case is not of that nature. In the present case, the petitioner wants admission in a Post Graduate Ayurvedic Medical Course. The ratio of the decisions cited by the petitioner are not applicable in the present case. 8 Furthermore, there cannot be any violation of the law when admittedly there is no law in the state of Uttarakhand permitting the petitioner to continue his studies, which he has voluntarily left midway more than 20 years back. It is not for this Court to rectify this mistake of the petitioner and grant relief by issuing a mandamus directing the respondents to grant admission to the petitioner in a course which he does not deserve to be admitted to, in the first place, under the law presently in force in the State of Uttarakhand. In case the petitioner wants to pursue his post graduation studies in his desired field he may request the authorities concerned de novo and if the rules permit and the petitioner qualifies, he may be granted admission in the first year of such course provided the government department to which the petitioner belongs approves the action of the petitioner in pursuing such studies. The writ petition, however, is wholly misconceived and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 23.6.2009 Rathour