THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b)) Description of Case WPMB No. 377 of 2003. decided on 28-5-03. Km. Neetika Gupta Vs. Director of Medical Education & Ors. A.F.R. (Approved for reporting) Not approved for reporting Date 28-5-03 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. RESERVED Writ Petition No. 377 (M/B) of 2003. Km. Neetika Gupta …… Petitioner Versus The Director of Medical Education, Lucknow and others. …….. Respondents. ……………. Hon’ble P.C.Verma, A.C.J. Hon’ble Irshad Hussain,J. (Delivered by Hon’ble P.C.Verma,A.C.J.) By means of this writ petition the petitioner has prayer for issuance of a writ, order of direction in the nature of certiorari quashing the order dated 10.04.2003, contained in Annexure No.10 to the writ petition, passed by the Director General, Medical Education & Training, Uttar Pradesh, Lucknow cancelling the admission of the petitioner in M.B.B.S. course in King George Medical College, Lucknow with a further prayer to issue a writ in the nature of mandamus commanding the respondents to let the petitioner continue the study in M.B.B.S, course in King George Medical College, Lucknow. The facts and circumstances under which the impugned order cancelling the admission of the petitioner was passed are that under the Xth schedule to U.P. Reorganisation Act 2000, 55 seats were allotted for admission in various medical colleges of Uttar Pradesh to the residents of Uttaranchal. The Bundelkhund University, Jhansi was entrusted to conduct the entrance examination for 55 seats allotted to Uttaranchal in various medical colleges of Uttar Pradesh. An advertisement was made inviting the applications for entrance examination and a brochure was also published alongwith entrance examination form by the University. According to the brochure, which is contained in Annexure No.6 to the writ petition, out of 55 seats, 33 seats were allotted to M.B.B.S. course in various medical colleges, 3 seats for B.D.S. course, 15 seats for B.H.M.S. course and 4 seats for B.U.M.S. course. Reservation in admission was given to the reserved category candidates, in which 19% seats were reserved for Scheduled Caste candidates, 4% were reserved to Scheduled Tribes candidates, 14% were reserved to Other Backward Classes candidates and 2% for dependents of freedom fighters. Brochure for Uttaranchal Combined Pre-Medical Test-2002, contained in Annexure No. 6 to the writ petition, provides eligibility of the candidates. Clause (a) of Part II of aforesaid brochure, which is in Hindi, provides that a candidate must be citizen of India and bonafide resident of Uttaranchal. According to the brochure, bonafide residents are those who have permanent home in Uttaranchal. This shall also include such residents of Uttaranchal who have been residing for 15 years or who have permanent home in Uttaranchal but have been residing out side the State for their livelihood. The persons having permanent home would mean such persons who have been residing in Uttaranchal through their descends and have their ancestral home in Uttaranchal. Alongwith the brochure certificate for permanent residence was provided. The petitioner obtained a certificate of Sub Divisional Magistrate, Haldwani, District-Nainital on 06.9.2002 on the prescribed proforma, contained in Annexure No.4 at page 39 of the writ petition. The certificate so obtained by the petitioner which is in Hindi is reproduced below in English:- “Certificate No.1 (Permanent residence Certificate) Certified that Km. Neetika Gupta Daughter of Sri Ram Kishor Gupta resident of village / Mohalla / Ward Parvatiya Mohalla, Tehsil Haldwani, District Nainital is permanent resident of Uttaranchal. It is also certified that before issuing the aforesaid certificate all the prescribed conditions have been carefully examined and I am fully satisfied with the same. Sd. (illegible) On the basis of permanent 06.9.02 certificate No.548 dated 14.6.2001. Sub Divisional Magistrate Haldwani (Nainital) Note: 1. Definition of original resident of Uttaranchal. (a) Must be citizen of India and bonafide residents of State of Uttaranchal and further provided that bonafide residents means those persons who have permanent home in Uttaranchal and shall also include such residents of Uttaranchal who have been residing for 15 years or who have permanent home in Uttaranchal but have been residing out side the State for their livelihood. The persons having permanent home would mean such persons who have been residing in Uttaranchal through their descends/ have their ancestral home in Uttaranchal. (b) As an exception to the conditions prescribed in point No.(a) in special matters such persons shall also be deemed as bonafide residents of Uttaranchal who have been in employment in permanent capacity under the State Government/ Semi Government Institutions. The persons employed in permanent capacity in Uttaranchal of Central Government or undertakings and whose services are non transferable outside the Uttaranchal, shall also be included in this category. For this purpose sufficient evidence shall have to be made available by the applicant”. The certificate as quoted above was obtained by the petitioner on the basis of certificate of permanent residence issued to her bearing No.548 dated 14.6.2001. The certificate of permanent residence dated 14.06.2001 was issued under the joint signatures of S.D.M., Haldwani and Tehsildar Nainital for District Magistrate, Nainital. The said certificate contained as Annexure No.2 to the writ petition which is in Hindi is being reproduced below in English:- “Permanent Residence Certificate Certificate No. 548/97 Typist Dated 14.6.2001 On the basis of report of Tehsildar/Land Record Inspector dated 14.6.2001 certified that Km.Neetika Gupta D/o Sri Ram Kishor Gupta, resident of Parvatiya Mohalla, is permanent resident of Tehsil Haldwani, District-Nainital. Dated 14.6.2001 Sd. (illegible) Sd. (illegible) 14.6.01 Tehsildar Deputy Collector Haldwani (Nainital) Haldwani For District Magistrate Nainital”. The entrance examination was conducted by the Bundelkhund University on 15.07.2002 in which the petitioner appeared on the basis of aforesaid certificate of permanent residence dated 06.09.2002 which was issued on the basis of certificate No. 548 dated 14.6.2001. The result was declared placing the petitioner at serial No.1 in O.B.C. list women category and VIIIth rank in general category as stated by the petitioner in Para 16 of the writ petition. After the counselling the petitioner was given admission in Chhatrapati Shahu Ji Maharaj Medical University earlier known as King George Medical College, Lucknow and the petitioner started studying the course of M.B.B.S. from October 2002 and continued till the cancellation of her admission by the impugned order. One Sri Zahin Iliyas Ahmad S/o Sri Iliyas Ahmad made a complaint on 16.11.2002 that the petitioner is a permanent resident of Bareilly where she completed her education upto Intermediate. Her family resides at Bareilly. So the certificate issued to her on 14.06.2001 was illegal. He also filed a writ petition bearing writ petition No. 885 of 2002 before this Court in December 2002 praying the following relief:- (a) “Issue a writ order or direction in the nature of mandamus directing the respondent to conduct an enquiry about the Uttaranchal domicile of those who are depriving the bonafide domicile of Uttaranchal to M.B.B.S. courses in various categories in various Medical College of Uttar Pradesh. (b) Issue a writ order or direction in the nature of mandamus to directing the respondent admit the petitioner for M.B.B.S. course either as a General Candidates or under the O.B.C. category at any of the state Medical Colleges of Uttar Pradesh for Uttaranchal domiciles notified in the brochure (Annexure No.1). (c) Issue a writ order or direction in the nature of certiorari quashing the notification dated 23.11.2002 and 11.12.2002 (annexure IXA and IX B) to the petition. (d) Issue any other writ order or direction which this Hon’ble Court may deem fit in the circumstances of the case. (e) Award cost of the petition”. In the aforesaid writ petition notices were issued to all the respondent including the petitioner. After the issuance of notice the State of Uttaranchal, vide its letter dated 04.12.2002 bearing No. 1762/Medical-1-02-89/2002 ordered an inquiry into the matter and directed the District Magistrates, Nainital and Bareilly to inquire about the permanent residence of the petitioner and to report. The District Magistrate, Nainital got the matter inquired by the S.D.M./Deputy Collector Haldwani and submitted his report on the basis of inquiry held by the S.D.M., Haldwani that Km.Neetika Gupta is not a permanent resident of Uttaranchal and certificate was obtained by her on the basis of misrepresentation. The District Magistrate, Bareilly got the matter inquired through Tehsildar, Bareilly and A.D.M. Bareilly submitted a report on behalf of District Magistrate, Bareilly that the petitioner is permanent resident of District Bareilly which is contained in Annexure No.9 to the writ petition at page 94 of the paper-book. It has been mentioned in the report of A.D.M. Bareilly that on the basis of inquiry held by the Tehsildar dated 18.12.2002 Ram Kishor Gupta, father of petitioner was found to be the permanent resident of Bareilly. His mother was in service in Haldwani. Ram Kishor Gupta purchased the house in which they were residing on rent. He resides permanently in Haldwani. Ram Kishor Gupta has a house at 4 Ashapuram, Delapeer, Stadium Road, Bareilly. Km. Neetika Gupta D/o Ram Kishor Gupta is permanent resident of Bareilly and is ‘Teli’ by caste under the O.B.C. category. The A.D.M., Bareilly reported that the father of the petitioner is permanent resident of Haldwani and the petitioner is permanent resident of Bareilly. On the report of the District Magistrate, Bareilly and the District Magistrate Nainital, the Additional Secretary, State of Uttaranchal, vide his letter dated 1762/Medical-1-2002-89/2002, dated 01.12.2002 informed the Director General, Medical Education and Training Uttar Pradesh that the certificate of permanent residence of Uttaranchal was obtained by the petitioner Km.Neetika Gupta D/o Ram Kishor Gupta by misrepresentation. Therefore, she was not eligible for admission against the seats reserved for the candidates who are permanent residents of Uttaranchal. As such the impugned order was passed. During the course of hearing we summoned the entire record from the State of Uttaranchal and also required the Commissioner, Kumaon Division to submit his report on the permanent residence status of the petitioner. The Commissioner, Kumaon Division submitted his report dated 12.05.2003, which was taken on record. Sri L.P.Naithani, learned counsel for the petitioner contended that the impugned order of cancellation of admission of the petitioner was passed in violation of principles of natural justice as the petitioner has not been given further opportunity by the Director General, Medical Education and Training U.P. The petitioner at no stage has seen the report of the District Magistrate, Bareilly and recommendation of the District Magistrate, Nainital and she was not informed that on which ground the admission of the petitioner was cancelled. He further contended that the petitioner has been residing in Haldwani since 1978 and has a permanent house much before the petitioner sought admission in Medical College. The petitioner is permanent resident of State of Uttaranchal according to the G.O. dated 20.11.2001 as the petitioner was born at Haldwani. The petitioner studied in Pant Nagar University both Agriculture and Veterinary courses. The report of the Additional District Magistrate, Bareilly sent on his behalf by the District Magistrate has been ignored in which it has been reported that the petitioner is permanent resident of Haldwani. Learned counsel for the petitioner further contended that the petitioner’s grand father Nathu Ram settled at Haldwani, District Nainital about 42 years back and he was doing business of selling ice and the petitioner’s mother Smt. Simla Devi was midwife in the Welfare Health Centre and they lived at Haldwani since the time grandfather shifted there. The petitioner’s father started dry-cleaning shop business in the name “Shyama Dry Cleaner” opposite Nanak Sweet House at Haldwani in the year 1980. The petitioner’s father was a tenant of 9/17 Parvatiya Mohalla, Bareilly Road Haldwani since 1978 and ultimately he purchased the house by sale deed in 2001. The name of the father of the petitioner has also been mutated. The father of the petitioner has paid house-tax. The grand father of the petitioner died in Haldwani in the year 1985. The requirement of bonafide residence in a State is fulfilled in view of the law laid down by the Apex Court in Yogesh Bhardwaj versus State of U.P., reported in 1990 (3) S.C.C.,page 355. The learned Additional Advocate General Sri U.K.Uniyal on the basis of the report of the Commissioner, which is also based on record, submitted that a perusal of the Government order dated 20.11.2001 shows that such certificate shall only be issued to those persons who are Indian citizens and bonafide residents of Uttaranchal. In the matter of petitioner this is an admitted fact that she has neither been residing in Uttaranchal for 15 years, as admittedly she has had her education in Bareilly with her parents nor she had any permanent home in Haldwani i.e. in the State of Uttaranchal at the point of submitting application for the certificate in question. The petitioner further can not claim the permanent residence status through her parents as she herself did not reside in Uttaranchal with her parents as admittedly she stayed with her parents and has had her education in Bareilly only nor did she have any ancestral house at the point of time i.e. at the time of seeking certificate for permanent residence in the State of Uttaranchal. This is further not denied that in the year 1999 a certificate relating to the caste was issued to the petitioner by the Tehsildar Bareilly wherein she has been shown to be a resident of ‘153, Kasgaraan, Bareilly’. Learned Addl. Advocate General further submitted that the claim of the father of the petitioner that he had been residing in Haldwani for last 23 years in House No.9/17, Parvatiya Mohalla, Bareilly Road, Haldwani stands belied in view of the report submitted by the Executive Officer, Nagarpalika, Haldwani, which states that in the house in question one Smt. Gomti Devi (land-lady) wife of Sri Tikam Das has been residing since 1986-87 and no tenancy of any person has been recorded in the referred house in the Nagarpalika records. The petitioner’s claim for the grant of permanent residence certificate stands rejected in view of the fact that neither she has a permanent home in Uttaranchal nor she resided with her parents at Haldwani and further that as she had her education in Bareilly only. He further submitted that the contention of the father of the petitioner in his reply to the S.D.M., when the latter was conducting the enquiry that the house in which he was allegedly living for the last 23 years has since been purchased by him, is false as per the records. The father of the petitioner only has purchased a room with an area of 15 Sq. meters in the said building that too in December 2001. It is apparently an effect to substantiate his claim of having a permanent home in Uttaranchal. The copy of the Ration card given to the S.D.M. was issued only in the year 1999, which does not support the claim of petitioner of an extended or longer stay. Before dealing with the rival contentions of the learned counsel for the petitioner and respondents we may examine as to whether the conditions of eligibility contained in the brochure and conditions for grant of permanent residence certificate contained in the brochure are mandatory or directory. The Apex Court in Kumari Chitra Ghosh and another versus Union of India and others, reported in 1969 (2) Supreme Court Cases, 228 in para-9 has held as under:- “It is the Central Government which bears the financial burden of running the medical college. It is for it to lay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made. That essentially is a question of policy and depends inter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is necessary to provide facilities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification.” The Apex Court in Km.Manju and another versus State, reported in A.I.R. 1972, Himachal Pradesh, 37 held that the rules laid down in prospectus has force of law. Paras 12 & 13 of the report are reproduced as under:- “12. Right of admission to an educational institution, run either by the State or by a State aided institution, is considered sufficiently important to be classified as a fundamental right in Article 29 (2) of our Constitution. We may also refer here to the term ‘State’ as used in Art. 12 for the purposes of Part III of the Constitution, which would include, for the purposes of enforcing fundamental rights, institutions such as medical colleges run by the State which do not have legally separate entities. The rules made by such a college or on its behalf, by the State Government would be law. Law, as defined by Art. 12 “includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.” 13. We, therefore, conclude that we are justified in treating the rules laid down in the prospectus as having the force of law governing the rights of applicants for admission, the power and obligations of the college its Selection Board, and the Government, in dealing with the cases of the petitioners for admission which we now proceed to examine.” After the forty-second amendment entry 11 of list II was deleted and the subject education, including technical education, medical education and universities was inserted in entry 25 of the concurrent list i.e. list II of the VIIth schedule of the Constitution of India, which reads as under:- “[25. Education, including technical education, medical education and universities, subject to the provisions of entries 63,64, 65 and 66 of List I; vocational and technical training of labour.]” Thus, the Parliament as well as the State legislatures are competent to legislate on the topics enumerated in entry 25, list III which contains medical education. So far as the State legislation on the topic it will be subject to provisions of entries 63,64,65 and 66 of list I. The State legislation has to be in accordance with the provisions of Article 254 of the Constitution of India. Both the Government i.e. Government of India and State Government are free to regulate the admission in the medical courses by executive orders in exercise of its power under Articles 73 and 162 of the Constitution. The law made by the Parliament shall prevail over the law made by the State legislature subject to the Article 254 of the Constitution. Likewise if the executive order is issued by the Government of India in absence of any law made by the Parliament, that will prevail over the executive order issued by the State Government in exercise of its power under Article 162 of the Constitution. Neither any law has been made by the Parliament nor any Government order has been issued by the Government of India regulating the admission in medical colleges. Field is unoccupied. The State Government in its executive power can issue Government order. Therefore, the conditions contained in the brochure providing for eligibility of a candidate that he must be citizen of India and bonafide resident of State of Uttaranchal and further providing that bonafide resident must be citizen of India and must be bonafide resident of that State or area based on the G.O. dated 20.11.2001 of the State Government are statutory in nature. The Apex Court upheld the reservation based on residence requirement for a period of not less than ten years, for admission in Medical Colleges in the State of Mysore in decision of Kumari N.Vasundara versus the State of Mysore and another, reported in 1971 (2) Supreme Court Cases, page 22 which reads as under:- “………………….The object of framing the impugned rule seems to be to attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. ……………….. The State has therefore to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education……………….. The counter-affidavit filed by the State on the other hand discloses the purpose to be that of serving the interests of the residents of the State by providing medical aid for them”. In Dr. Pradeep Jain and others versus Union of India and others, reported in (1984) 3 Supreme Court Cases 654 after referring all the above judgments (Supra) held as under:- “The claim of State interest in providing adequate medical service to the people of the State by imparting medical education to students who by reason of their residence in the State would be likely to settle down and serve the people of the State as doctors has thus been regarded by the Court as a legitimate ground for laying down residence requirement for admission to medical colleges in the State’. We have extracted above the translated form of these conditions in English. Originally it is published in Hindi. We have used word “must be” in our translation as in Hindi word “Aavashyak hai” have been used. Use of word “must be” in the condition has a reason that after the enforcement of U.P. Reorganisation Act 2000 the State of Uttaranchal came into being and the seats for admission in the Medical Colleges were to be allocated by the State of Uttar Pradesh for the residents of State of Uttaranchal as per the provisions under the Xth schedule of U.P. Reorganisation Act 2000. Accordingly, 55 seats were ear-marked and allocated for residents of Uttaranchal. Therefore, these seats could only be filled by those candidates who are bona fide residents of Uttaranchal. The use of word “Aavashyak hai/must be” itself makes these conditions mandatory in view of the law laid down by the Apex Court in Lachmi Narain versus Union of India, reported in A.I.R. 1976 SC 714 at page 726, in which the Apex Court has held as under:- “It will also be sufficient to hold the provision mandatory and it will not be necessary to pursue the inquiry any further”. As we have quoted above the certificate issued to the petitioner on 06.9.2002, contained in Annexure No.4, page 39 of the paper-book was issued on the basis of certificate issued on 14.6.2001, contained in Annexure No. 2 to the writ petition. The certificate dated 14.6.2001 was issued in terms of the Government Order dated 27th January 2000 which was issued by the existing State of Uttar Pradesh prior to the enforcement of U.P. Reorganisation Act, 2000 and was in force by virtue of Section 86 of the said Act within the meaning of law defined in Section 2(f) of U.P. Reorganisation Act, 2000. After issuance of Government Order dated 20.11.2001 and publication of brochure the conditions for admission and eligibility for entering in Combined Pre-Medical Test stood changed and Government Order dated 27.01.2000 stood superseded. Government Order dated 27.01.2000 does not contain the conditions contained in Government Order dated 20.11.2001. Thus, the certificate issued on 14.6.2001 was not in conformity of the G.O. dated 20.11.2001. Therefore, the certificate was obtained by the petitioner by misrepresentation and the officer was also equally at fault who issued the certificate without verifying the conditions laid down in the brochure. The petitioner could not get admission on the basis of this certificate which was not issued as