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Judgment
Rakesh Kumar Jain, J.—The petitioner has challenged the validity of the definition of Non resident Indian, to the extent of requiring parents/grandparents of such a person "to own immovable property in his/her name in Chandigarh for the last at least five years" and the letter dated 02.07.2013, communicated on 05.07.2013, asking her to furnish the certificate from the office of the DC-cum-Estate Officer, Chandigarh or Municipal Corporation of Chandigarh, about owning immovable property by her parents/grandparents in their name in Chandigarh for the last at least 5 years. According to the petitioner, she is a Canadian citizen. Her grandfather, namely, Karnail Singh S/o. Chanda Singh had retired as Under Secretary in the year 1994. He resided in House No. 2197-A, Sector 27-C, Chandigarh from 1965 to 1984 and thereafter shifted to House No. 219. Sector 7-A, Chandigarh, both Government accommodations provided by the Chandigarh Administration, and resided there from 11.06.1984 to 05.12.1994. In the meanwhile, father of the petitioner joined as a S.O. (Civil) on 11.11.1988 in the Engineering Wing of Chandigarh Administration and was allotted another Government accommodation bearing House No. 1191-A, Sector 20-B, Chandigarh, which he vacated on 02.01.1997 and was simultaneously allotted House No. 114, Sector 19, Chandigarh, which was vacated by him on 14.12.2003. It is further averred that presently father of the petitioner is working as Sub Divisional Engineer (Roads), Sub Division No. 1, Municipal Corporation, Chandigarh in the Engineering Wing of the Municipal Corporation, Chandigarh on deputation. She further averred that after 14.12.2003, her father started living in House No. 918. Phase 7, Mohali, owned by her grandfather. It is further stated that the petitioner passed her 10+2 examination as a regular student from St. Soldier International Convent School, Mohali, securing 85.2% marks.
Respondent No. 2 issued a Centralized Admission Brochure for admission to the MBBS/BDS/BAMS/BHMS courses in 4 colleges which are detailed below:-
i) Govt. Medical College & Hospital, Sector-32, Chandigarh.
ii) Dr. Harvansh Singh Judge Institute of Dental Science, Sector 25, Chandigarh.
iii) Shri Dhanwantry Ayurvedic College & Hospital, Sector 46-B, Chandigarh and
iv) Homeopathic Medical College & Hospital, Sector 26, Chandigarh.
As the petitioner is desirous to take admission in the M.B.B.S. Course in the NRI category, the relevant eligibility clause relating to NRI category, as reproduced in the writ petition, is extracted here under:-
Eligibility and Merit for NRI seats (03 Seats) for M.B.B.S. Course:
In addition to the general conditions above, under the NRI Category 03 seats shall be filled up as per preference order of Category 1 and 2, given as under:-
First preference will be given to those NRI candidates who have ancestral background of Chandigarh (Category 1):
For ancestral background of Chandigarh, the grandparents/parents of the candidates should be resident of Chandigarh for a minimum period of 5 years at anytime since the origin of Chandigarh and should have immovable property in his/her name in Chandigarh for the last at least 5 years. A certificate to this effect is required from DC-cum-Estate Officer or Municipal Corporation of Chandigarh.
Second preference will be given to those NRI candidates who have ancestral background of States/UTs other than UT Chandigarh (Category 2).
A certificate regarding ancestral background of the other State/UT from the competent authority is to be submitted in case of students with ancestral background of other states/UTs.
There will be no separate test/entrance test for the candidates applying for NRI/Foreign Indian Student. These candidates will have to obtain the eligibility & equivalence certificate for their qualifying examination from the Panjab University, Chandigarh, (as mentioned in general condition point
No. f) Determination of merit: The Candidates against NRI seats will be admitted on the basis of merit determined by the marks obtained in Physics, Chemistry & Biology/Biotechnology (PCB/Biotechnology) in the qualifying examination. For this, the candidate must provide the certificate of 10+2/Pre-medical/10+2+3 system qualifying examination from any university/board showing detailed % marks/explanation sheets of grade. The candidates must preferably provide the percentage marks in Physics, Chemistry, Biology/Biotechnology as well as English of both Class 10+1, 10+2 level. Merit shall be determined on the basis of Physics, Chemistry, Biology/Biotechnology of Class 12 Level or its Equivalent level which shall be the qualifying examination. If a candidate provides the grade and does not provide the exact percentage marks, then the merit shall be determined on the basis of the lower of the percentage range i.e. if the Grade is B (percentage range for B = 80-89%) then marks for computation purpose shall be 80%. However, if the candidate provides the exact percentage i.e. 86% then the marks for computation purpose shall be 86%.
Note-1 If sufficient number of candidates under 1st category are eligible and available then they will be admitted first even if students under subsequent category are higher in merit.
Note-2 The NRI students will have to give a bank guarantee (within one month) for the balance fee, if they opt to pay fee in installments as enumerated on page No. 10 instead of paying in lump sum i.e. US $ 75000.
Note-3 For M.B.B.S. Course, it may be noted that Foreign Indian Student (NRI) seats are not open for Foreign Nationals who are not persons of Indian Origin.
According to the schedule for admission, the last date for submission of application form for all the candidates was 24.06.2013 up to 4.00 P.M.
The first counseling for the NRI category was fixed for 19.07.2013 at 9:30 A.M. and the second counselling was to be notified later on, if any.
The petitioner purchased the requisite Centralized Brochure paying Rs. 5,000/- and filled up the form for admission in NRI quota. Vide letter dated 02.07.213, received on 05.07.2013, the petitioner was asked to give proof of her residence and ownership of immovable property by the parents/grandparents and in that regard, a certificate was asked to be submitted, duly issued by the DC-cum-Estate Officer, Chandigarh or the Municipal Corporation of Chandigarh.
This letter allegedly gave cause of action to the petitioner to file the present writ petition.
After notice was issued in this case, vide order dated 29.07.2013, the petitioner was permitted to join the counselling in the NRI category, making it clear that it would be subject to the outcome of the present writ petition and that the petitioner would not claim any equity later on.
In the reply filed by the respondents, a preliminary objection was raised that it is too late in the day, on the part of the petitioner, to lay challenge to the criteria for considering the cases of NRI category. It is alleged that the prospectus was published in the month of April 2013 and after going through each and every clause and knowing fully well the criteria for NRI category, the petitioner had applied for the same. It is alleged that the petitioner is not denied to be a NRI candidate but the preference is to be given to the NRI candidate who has ancestral background of Chandigarh. The petitioner falls in the second preference and the said fact was known to her and now she cannot challenge the same after participating in the selection process. It is further alleged that the petitioner is a resident of Mohali, in the State of Punjab, who is trying to become the NRI of Chandigarh by filing the present writ petition.
The petitioner filed rejoinder to the reply and alleged that there is no estoppel against law because the impugned Clause is violative of Article 14 of the Constitution of India as it has no rationale nexus with the objects to be achieved and it also undermine the dignity of an individual.
The respondents, thereafter, filed affidavit of Dr. Atul Sachdev, Director (Principal), Govt. Medical College and Hospital, Sector-32, Chandigarh dated 05.08.2013 in which it is averred that the matter regarding ancestral background was considered by the Committee for review and vide letter dated 27.06.2007, it was recommended that the ancestral background, as provided in the impugned Clause, should be maintained.
Opening his submissions, learned counsel for the petitioner has submitted that in another writ petition bearing CWP No. 11243 of 2011 titled as "Simran Kaur Sodhi and another v. Union Territory, Chandigarh and another", the following observations were made by this Court while disposing of the said writ petition as infructuous on 09.08.2011:-
Before parting with the order, it would be necessary to direct the Union Territory of Chandigarh, to re-consider the definition of a "Non Resident Indian candidate". The definition as framed requiring parents and the grand-parents of a "Non resident Indian candidate" to own immovable property in Chandigarh, may be violative of the constitutional guarantee of equality.
In response to the aforesaid order, it is averred by Dr. Atul Sachdev in his affidavit dated 05.08.2013, that Chandigarh Administration had reconsidered the whole issue under the Chairmanship of the Governor and vide order dated 25.05.2012, it had been decided that the definition of the NRI will remain the same.
Counsel for the petitioner has submitted that the said order dated 25.05.2012 has not been placed on record which would reflect the reasoning and the application of mind of the Committee. He has submitted that the word "consider" was discussed and defined by the Apex Court in A.P.S.R.T.C. and Others Vs. G. Srinivas Reddy and Others, Bhikhubhai Vithlabhai Patel and Others Vs. State of Gujarat and Another, and Ram Chander Vs. Union of India (UOI) and Others,
It is further submitted that the impugned Clause is not based upon an intelligible differentia which must have a rationale nexus to the object sought to be achieved. In this regard, he has relied upon two judgments of the Supreme Court in the cases of Deepak Sibal Vs. Punjab University and Another, and Ahmedabad Municipal Corpn. Another Vs. Nilaybhai R. Thakore and Another,
He has also submitted that even if the petitioner had filled the form despite the presence of the impugned Clause and was not qualified to apply at that time, she still can challenge the impugned Clause at this stage on the principle that there is no estoppel against law. In this regard, he has relied upon a judgment of the Supreme Court in the case of Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, and a Division Bench judgment of this Court in the case of Vikas Sharma Vs. State of Haryana .
It is argued by learned counsel for the petitioner that since the grandfather of the petitioner had already constructed a house at Mohali, he would not possibly get a house under the relevant provisions of the Chandigarh Housing Board schemes or the Chandigarh Cooperative House Building schemes in Chandigarh. It is also argued that grandfather and father of the petitioner were continuously residing in Chandigarh since 1964 and it was only in the year 2003 that they had shifted to their own house at Mohali where they are putting up for the last 10 years, whereas it is provided in the eligibility Clause that the parents/grandparents of the candidate should be a resident of Chandigarh at any time since the origin of Chandigarh. Thus, the petitioner qualifies this Clause except the second one which provides for owning immovable property in the name of parents/grandparents of the candidate in Chandigarh for the last at least 5 years, which is arbitrary and violative of Article 14 of the Constitution of India.
It is pertinent to mention here that a candidate, namely, Gunjot Kaur Johal, who has got admission in the NRI category, being fully eligible even in terms of the impugned Clause, filed application to become a party as she is afraid that in case the present petition is allowed, she may not loose her admission.
Counsel for the respondents, however, has submitted that earlier there was no medical college in Chandigarh and the students belonging to Chandigarh were to take admission in other States. The impugned Clause has been added with a view to identify a bona fide resident of Chandigarh who has some permanent relation with Chandigarh which has been tried to be correlated by owning of immovable property. Since the parents of the petitioner have settled at Mohali, therefore, they are the permanent residents of Punjab and their stay at Chandigarh in various Government accommodations was a temporary residence. In this regard, he has referred to a decision of the Supreme Court in the case of Bhagwan Dass and Another Vs. Kamal Abrol and Others,
He has further submitted that the writ petition lacks bona fide because the prospectus was issued in the month of April 2013 and the last date for submission of application form was 24.06.2013. It is presumed that before submitting the application form, all the candidates read at least the eligibility criteria and the petitioner was also very well aware that she did not fulfill the eligibility criteria in view of the impugned Clause but still she submitted the application form. When it was found by the Committee that her application form does not contain any evidence to prove that her parents or grandparents own any immovable property in Chandigarh for the last at least 5 years, she was asked to submit the certificate in this regard from the office of the DC-cum-Estate Officer, Chandigarh or Municipal Corporation of Chandigarh, but instead of submitting the certificate the present writ petition has been filed challenging the said Clause. Thus, it is submitted that the petitioner at this stage, after submitting the application form, should not be allowed to challenge the impugned Clause because if she was not having the requisite qualification affecting her rights to get admission, she should have challenged it before filling up the application form and could have sought the permission of the Court to submit her application form, subject to the outcome of the writ petition. In this regard, he has relied upon a decision of the Supreme Court in the case of Vijendra Kumar Verma Vs. Public Service Commission, Uttarakhand and Others, and a Division Bench judgment of this Court in the case of Manjot Kaur Brar v. Baba Farid University of Health Sciences, Faridkot, 2002 (1) S.C.T. 515 : 2002 (3) SLR 607.
Learned counsel for the respondents has further submitted that the petitioner has not approached this Court with clean hands because she had already got admission in BDS Course in Dr. Harvansh Singh Judge Institute of Dental Science, Sector 25, Chandigarh in the general category. The present writ petition has been filed only in order to take a chance to get admission in the M.B.B.S. Course.
Insofar as the first argument of the learned counsel for the petitioner with regard to consideration of the definition of NRI is concerned, there is no quarrel with the judgments relied upon by him in A.P. SRTC and others'' case (supra), Bhikhubhai Vithlabhai Patel and others'' case (supra) and Ram Chander's case (supra).
In A.P. SRTC and others'' case (supra), the following observations have been made by the Supreme Court:-
We may, in this context, examine the significance and meaning of a direction given by the court to "consider" a case. When a court directs an authority to "consider", it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in High Courts being disposed of with a direction to "consider" the claim/case/representation of the petitioner(s) in the writ petitions.
Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to "consider" and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision making process, rather than the decision itself.
The High Courts also direct authorities to "consider", in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of power of judicial review, directs the authority to "consider" and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs consideration"" without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to "consider" afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so.
Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to "consider" the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to "consider" the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court.
In Bhikhubhai Vithlabhai Patel and others'' case (supra), the Supreme Court has observed as under:-
The formation of the opinion by the State Government is with reference to the necessity that may have had arisen to make substantial modifications in the draft development plan. The expression: "as considered necessary" is again of crucial importance. The term "consider" means to think over; it connotes that there should be active application of the mind. In other words the term "consider" postulates consideration of all the relevant aspects of the matter. A plain reading of the relevant provision suggests that the State Government may publish the modifications only after consideration that such modifications have become necessary. The word "necessary" means indispensable, requisite, indispensably requisite, useful, incidental or conducive, essential, unavoidable, impossible to be otherwise, not to be avoided, inevitable. The word "necessary" must be construed in the connection in which it is used.
The formation of the opinion by the State Government should reflect intense application of mind with reference to the material available on record that it had become necessary to propose substantial modifications to the draft development plan.
Similarly, in Ram Chander's case (supra), the following observations have been made:-
It was held that the word "consider" in Rule 27(2) of the Rules implied "due application of mind". The Court emphasized that the Appellate Authority discharging quasi-judicial functions in accordance with natural justice must give reasons for its decision.
On the other hand, it has been mentioned in the affidavit filed by the respondents that the Administration had re-considered the definition of NRI with regard to owning of immovable property in Chandigarh in a meeting presided over by the Governor of Punjab and decided on 25.05.2012 to maintain the same, though the order dated 25.05.2012 has not been placed on record. However, while interpreting the word consider"", the consistent view is that the authority to consider requires to apply its mind to the facts and circumstances of the case and then to take a decision in accordance with law.
It is next argued by the counsel for the petitioner that the impugned Clause is not based upon an intelligible differentia which must have a rational nexus to the object sought to be achieved and has relied upon two judgments in Deepak Sibal's case (supra) and Ahmedabad Municipal Corporation and another's case (supra).
There is no dispute with the proposition which has been canvassed by the petitioner because in Deepak Sibal's case (supra), the issue was with regard to admission to evening classes of three years LL.B. Degree Course which was provided only to the regular employees of government/semi-government institutions affiliated colleges/statutory corporations and government companies and the employees of private/public establishments/institutions were excluded on the ground of possibility of bogus certificates of employment from private employers. It was held that it was violative of Article 14 of the Constitution of India because the expression "regular employees" in the context means ""bona fide employees and not who is the employees of the Government of Semi- Government only. In the said case, it was held that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differentia must have a rational nexus to the object sought to be achieved by the statute in question.
Similarly, in Ahmedabad Municipal Corporation and another's case (supra), the issue was with regard to admission to Smt. N.H.L. Municipal Medical College on the ground that the Rules which define "the local students" are unreasonable, illegal, illogical and irrational as it prevented the students who are residents of Ahmedabad city but who had acquired their qualification for admission from the educational institutions situated within Ahmedabad Urban Development Area from being treated as "local students". In that case also, it was held that the classification that the educational institutions situated just outside the municipal limits, namely, Ahmedabad Urban Development Area, will not be eligible for being treated as local students, is unreasonable and illogical.
In this case also, the grandparents/parents of the petitioner have been residing in Chandigarh since 1965 till 2003. They constructed their house in Mohali in 2003 and shifted there. It is needless to mention that the Chandigarh adjoins the State of Punjab through Mohali and State of Haryana through Panchkula, which together are called as "Tricity". Most of the population of Chandigarh belongs to service class who have come from various places of the States of Punjab, Haryana, Himachal Pradesh and other adjoining States. It is also a hard fact that it is not easy to own immovable property, may be residential or commercial, for an employee in Chandigarh, therefore, the condition of having immovable property in Chandigarh for the last at least 5 years to be considered as NRI is highly unreasonable, illegal and illogical as it would not have any rational nexus to the object sought to be achieved and even the condition is totally vague because it only talks of immovable property without referring to its extent. It does not talk of immovable property whether it is to be residential or commercial or industrial. Thus, to my mind, the impugned Clause is totally impracticable, illegal, illogical and the same is held as such.
However, the primary question is as to whether the petitioner can be allowed admission at this stage when she has already got admission in BDS Course in Dr. Harvansh Singh Judge Institute of Dental Science, Sector 25, Chandigarh and she did not challenge the eligibility criteria before submitting the application form.
It is pertinent to mention here that the prospectus was issued in the month of April 2013 and the last date for submission of application form was 24.06.2013. The petitioner submitted her application form before the last date i.e. 24.06.2013 knowing fully well that she was not eligible because her grandparents/parents were not having immovable property in Chandigarh for the last at least 5 years. In those circumstances, it was incumbent upon the petitioner to challenge the said Clause as soon as she had got the prospectus in April 2013 because there was a period of almost 2 months from the date of issuance of prospectus till the date of submission of application form but she did not challenge it earlier and has filed the writ petition only on 05.07.2013 after the cut off date of submission of application form.
Insofar as the argument of learned counsel for the petitioner that there is no estoppel against the statute is concerned, he has relied upon a decision of the Supreme Court in Olga Tellis and others'' case (supra) in which it was held that there can be no waiver of fundamental rights holding that the right to life includes right to livelihood and any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21 of the Constitution of India.
In Vikas Sharma's case (supra), it was held that the terms and conditions declared in the brochure by the competent authority are binding and enforceable in law. Such conditions can be waived only by the concerned authority only at appropriate time and with due notice and must be strictly adhered to.
To my mind, both the aforesaid judgments relied upon by the counsel for the petitioner are not applicable to the facts and circumstances of the present case, rather the judgments relied upon by the counsel for the respondents in Manjot Kaur Brar's case (supra) is fully applicable in which it has been held that once the candidate avails his chance in a prescribed criteria without prejudice participating in the process, he cannot be allowed to take advantage and challenge the same.
Similar in Vijendra Kumar Verma's case (supra), it was held by the Supreme Court that if the candidate participates in the interview knowing the selection criteria that too without any protest at any stage, later on he cannot turn back to state that procedure adopted for selection was wrong and without jurisdiction. In the present case as well, the petitioner had the ample opportunity to challenge the offending Clause in the eligibility criteria in the month of April itself, rather much before the submission of the application form for which the cut off date was provided as
24.06.2013. However, despite knowing fully well that she does not fulfill the eligibility criteria of owning immovable property by her grandparents/parents in Chandigarh for the last at least 5 years, she submitted her application form and has now tried to make out her cause of action from the letter dated 02.07.2013 which was allegedly received by her on 05.07.2013 whereby she was asked to give proof of her residence and owning of immovable property by her grandparents/parents in Chandigarh for the last at least 5 years. It cannot be presumed even by any stretch of imagination that the petitioner had any legitimate expectation that her application form would be accepted by the respondents dehor the fact that she was not qualifying the eligibility Clause of having immovable property in Chandigarh by her grandparents/parents for the last at least 5 years, therefore, there was no occasion for her not to challenge the said offending Clause while submitting the application form before the cut off date on 24.06.2013 as there is no explanation or exception provided to the said Clause which could have been used by the petitioner.
Thus, the petitioner, is not entitled to any relief with regard to her admission in the M.B.B.S. Course.
Thus, the present writ petition is disposed of in the aforesaid terms.