Civil Writ Petition No.13280 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13280 of 2010 Date of decision: 28.01.2011 Manbir Kaur & Ors. ...Petitioners Versus State of Punjab and another ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Deepak Sibal, Advocate for the petitioners. Mr. Sumeet Abrol, AAG, Punjab for the State. Mr. K.S. Dadwal, Advocate for respondent No. 2. Mr. Rajesh Punj, Advocate for respondent No. 5. RANJIT SINGH J. This order will dispose of two Civil Writ Petition Nos. 11664 (Pawanpreet Kaur versus State of Punjab and another) and 13280 of 2010 (Manbir Kaur and others versus State of Punjab and another). These two writ petitions have been filed by three students, who have remained unsuccessful in getting admission to MBBS course, entrance tests for which were conducted by Baba Farid University of Health Science, Faridkot. Manbir Kaur and Ravneet Kaur are the two petitioners in CWP No. 13820 of 2010 whereas Pawanpreet Kaur is the single petitioner in the CWP No. 11664 of 2010. All the three petitioners in both the petitions had initially filed writ petition to claim admission in the category of wards of terrorist affected person for which one percent seats were Civil Writ Petition No.13280 of 2010 2 reserved as per the prospectus. The initial issue that confronted the petitioners for grant of admission was whether they could be validly considered in this category of being the wards of those killed in terrorist action as they are grandchildren of a person who was killed in terrorist action in Punjab or in riots outside Punjab. When this issue arose before a Division Bench of this Court, a reliance was made to a Division Bench of this Court passed on 31.08.2007, which was as under:- “The petitioner seeks a direction for admission to MBBS course against reserved category for Tsunami victims. The case of the petitioner is that in the prospectus, there is a Clause for reservation for Tsunami victims to the following effect. “X) Tsunami Victims: 1% Note: The reservation under Tsunami victims category shall be available only to the wards/children of all ex-servicemen settlers of Campbell Bay Island in Andaman & Nicobar.” The petitioner is grand-daughter of Sh. Jagjit Singh Gill who was serving the Indian Army and retired in the year 1961. Under the scheme of reservation for ex- servicemen personnel in Andaman and Nicobar Island, he was allotted land and got settled there in the year 1969. He suffered loss during Tsunami tragedy. The claim has been opposed on the ground that reservation was only for “Ward/Children” which did not include grand children. Civil Writ Petition No.13280 of 2010 3 Learned counsel of the petitioner submits that all the ex-servicemen settlers for whom reservation has been extended, were settled in the year 1969 and 1971 and not thereafter and in that regard if grand child is excluded, the reservation will be futile as the ex- servicemen settled in the year 1969-1971, will not have their immediate children eligible for admission. In addition to above, learned counsel for the petitioner also refers to averments made in para 7(i) of the writ petition giving particulars of grand children of ex- servicemen who were given admission in the said category. Learned counsel for the respondents could not dispute the particulars given in the petition but only point out that this interpretation was taken last year. Having regard to the fact that the interpretation now taken will be inconsistent with the interpretation earlier taken and will render the provisions in the prospectus for the reservation for Tsunami Victims futile, we direct that the petitioner be considered eligible as per above clause in the prospectus. The petition is disposed of.” The Division Bench, prima facie, was not inclined to accept the above noted view and was of the following opinion:- a) the aforesaid decision rested on the definition of 'Tsunami Victims' and with regard to ex-servicemen settlers who were settled in the year 1969-1971; Civil Writ Petition No.13280 of 2010 4 b) the aforesaid definition included 'reservation for wards/children' and the present case involves the question of 'reservation for wards' c) if the aforesaid view of the Division Bench is accepted, this would amount to extend the definition of 'wards'. Accordingly, we are of the view that this matter deserves to be heard by a Full Bench. List on 23.8.2010 at 2 PM before a Full Bench.” The matter, therefore, was placed before the Full Bench, which has vide its order dated 15.09.2010 has held that case of the petitioner being not covered by the reservation clause and the earlier judgment being distinguishable, the question has to be answered against her. Thus, the question referred to the Full Bench was decided against the petitioner and the directions were issued for listing the writ petition before appropriate Bench for further orders. Above being the position, obviously the writ petition of the petitioners was required to be rejected. The petitioners, however, then filed an amended writ petition making a prayer for grant of admission as grandchildren of terrorist affected family. This Court issued a notice in the amended writ petition on 30.09.2010 by noticing the position in detail by passing the following order:- “The petition was originally filed seeking direction for declaring Clause 5C(ii) and (iv) ultra vires as the same have no nexus with the objects sought to be achieved and on the ground of being arbitrary. The matter ultimately Civil Writ Petition No.13280 of 2010 5 came to be referred to a Full Bench and the Full Bench has now held that the petitioner would not be entitled for considering under the category of grand children killed in terrorists action as the breadwinner in these categories would be parents, who are still alive, have not been affected by terrorism. The challenge as made, thus, may not survive. Counsel for the petitioner has now filed an amended writ petition. The prayer made in the amended petition is for consideration for grant of admission as grand child of Terrorist Affected Family. Notice of the amended petition for 05.10.2010. Mr. Manoj Bajaj, DAG, Punjab, Mr. Saurabh, Advocate and Mr. Rajesh Punj, Advocate & Ms. Ritu Punj, Advocate, accept notice on behalf of respondent Nos. 1, 2 & 4 respectively. Dasti notices of the amended petition to the remaining respondents for 05.10.2010.” In the amended writ petition, three private respondents namely Ramanvir Singh, Manpreet Kohli and J.S. Dhariwal were also impleaded as they had been selected in the category of terrorist victim. The submission now is that wards of terrorists affected person is the one category as per the prospectus and persons killed in terrorist action in Punjab/riots outside Punjab and those affected by terrorists, riots and displaced persons form part of one category. As per the petitioner, only preference was to be given to the wards of persons killed in terrorist action and not that these would be two Civil Writ Petition No.13280 of 2010 6 separate categories. Mr. Sibal, in this regard, has placed strong reliance on paragraph 5 (vi) of the prospectus, which provide for reservation. This para of the prospectus is as under:- (vi) Wards of terrorist affected persons (in order of preference to the exclusion of next category) (As per decision of the Hon'ble Supreme Court) (a) Persons killed in terrorist actions in Punjab/riots outside Punjab. (b) Terrorist/Riot affected/displaced persons. Mr. Sibal will, accordingly, contend that even if the petitioners were not eligible for being considered as the wards of person killed in terrorist action on the ground that they are grandchildren, they would certainly be eligible for being considered as wards of terrorist affected/riot affected or displaced persons. There is apparent fallacy in this submission. If both the categories are same then the petitioners cannot be taken as wards of terrorist affected and would be disqualified as per the judgment of the Full Bench. The petitioners indeed were considered in this category this being different category but were not admitted. In the reply, the stand taken by respondents is that the petitioners had only applied under the category Code No. 22 being Wards of person killed in terrorist action but still in fairness, they were considered in the category of displaced persons at the time of counselling. It is stated that only those persons could be considered in the category of riot affected/displayed persons, who had red card issued by the Government of Punjab to show. Since the petitioners could not produced the red card, they were not considered eligible in Civil Writ Petition No.13280 of 2010 7 the category of wards of riots affected/displaced persons. It is also pointed out that respondents No. 3 to 5 had applied in the category 21 and sub category B and had produced the red card at the time of counselling to substantiate their claim as wards of displaced person and, accordingly, their admission has been justified. In the replies filed on behalf of the private respondents, it is pointed out that even if the claim of the petitioners Ravneet Kaur and Pawanpreet Kaur is allowed, they would not be able to get admission as private respondents are more meritorious. According to the counsel, this exercise of considering the petitioner, thus, would be an exercise in futility. The counsel otherwise also submits that petitioners are not eligible for being considered in the category of wards of riot affected/terrorist affected or displaced persons as they had not applied in the said category. Plea is that it is not for the purpose of preference alone that these two categories were assigned separate categories number. For being eligible the petitioners were required to apply in all the relevant category if they were interested for being considered for admission in more than one category. In view of the above stand, it may first have to be seen as to in which categories the petitioners had applied and whether in that background they would be eligible for being considered as Wards of riot affected/displaced persons or not. As para 5 (v) reproduced above, it may appear that the category is one but it is only a matter of preference that the same has been sub-divided into para A and B. The deeper analysis of the position, however, would belie this position. Para 5 (v) apparently has been made for regulating the reservation and is not meant to make a provision for different Civil Writ Petition No.13280 of 2010 8 categories. Reservation is made for Wards of terrorist affected persons and preference is to be given to them, as per the classification done in sub para A and B. Para 5, in my view, is not making a provision for categories. This para is only providing for a reservation and the extent thereof. It also makes a provision for grant of preference for the purpose of consideration. The category-wise bifurcation and the category Code is given in page 12 of the prospectus. It is specifically stated at this page of prospectus that a candidate must select a category codes given below and fill in the appropriate circles. In case, a candidate belongs to more than one category then he/she may fill more than one category code at the appropriate stage. As per this, Wards of person killed in terrorist action in Punjab were to fill in category Code No. 21 whereas Wards of riot affected and displaced persons were to fill in category Code No. 22. The petitioners had filled in their form category Code 21. None of the petitioners had filled in the category code 22. The clear intention on their part, thus, was to be considered in category Code No. 21 which was for Wards for persons killed in terrorist action. The petitioners never applied for being considered as Wards of riot affected/displaced persons and legally could not be considered in this category. The petitioners pursued their claim in category 21 till the decision by the Full Bench of this Court and filed an amended writ petition thereafter. Accordingly, they amended their claim only once they were unsuccessful for being considered in the category of Wards of person killed in terrorist action. Though the respondents have considered the claim of the Civil Writ Petition No.13280 of 2010 9 petitioners in category 22 but that in my view was not appropriate as the petitioners had not applied in this category. It is a settled principal of law that a person can be considered for the categories in which he or she apply. The submission made by the counsel for the petitioners that indeed the petitioners would be the Wards of riot affected/displaced person would be meaningless because the petitioners were required to apply in this category if they were interested of being considered in the said category. It would be of importance to observe that petitioners could apply for more than one category and they could fill more than one category if they were so interested for being considered in these categories. The petitioners had not applied in category 22 and, hence, they could not be validly considered in this category for grant of admission. As already noticed, except for one petitioner Manbir Kaur, other two petitioners even after consideration cannot be admitted on merit as the respondents are more meritorious than the petitioners. Manbir Kaur may be entitled to admission on the basis of her merit but she could be considered in the category of Wards of riot affected/ terrorist affected or displaced persons only if she had applied in this category. The form filled by Manbir Kaur was placed before me at the time of argument and it is seen that this petitioner had not never applied in category 22. It was primarily for this reason that the counsel for the petitioner was vehement in his submission that the category of Wards of persons those killed in terrorist action and Wards of riot affected and displaced person is the same. If the category had been the same and it was a matter of only preference, then there is no reason or a cause for giving two separate code to Civil Writ Petition No.13280 of 2010 10 these categories. As already noticed, one percent reservation is made in all for both the categories whereas these categories being different have been assigned to two different code numbers. Para 5 (vi) of the prospectus is only making provision for reservation of all the categories and is not meant to assign categories or code thereof, which is done at page 12 of the prospectus and the same reads as under:- “11. Wards of a) Persons Killed in terrorist action in Punjab 21 b) Riot affected/displaced persons 22” The cause of the petitioner Manbir Kaur, therefore, can also not be considered for grant of admission in the category of wards of terrorists affected or riot affected/displaced persons. There is no merit in any of the writ petitions and the same are, accordingly, dismissed. January 28, 2011 (RANJIT SINGH ) rts JUDGE