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Judgment
Abhay Manohar Sapre, J.—The decision rendered in Writ Petition (C) No. 1382/2012 shall also govern the disposal of another connected writ petition being Writ Petition (C) No. 6282/2011 because both the writ petitions involve identical issues. By filing this writ petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the constitutional validity of Explanation-(3) of Rule 5(5) of the Chhattisgarh Ayush Snatak Pathyakram Me Pravesh Pariksha Niyam, 2011 (for short called "the Niyam 2011") or in the alternative, seek its proper interpretation.
The impugned provision reads as under:-
The question involved in this petition is two fold. First, whether son/daughter of freedom fighter''s daughter is entitled to get the benefit of freedom fighter quota in seeking admission in Bachelor of Ayurvedic Medicines and Surgery (BAMS) course or such benefit should be confined to his son''s son/daughter only and secondly when admittedly the State has extended such benefit in PMT courses to both then whether it is obligatory upon the State to extend such benefit to all educational courses?
The factual controversy lies in a narrow compass as it is clear from the facts narrated infra:-
Petitioner Sonika Pandey is the daughter''s daughter of late Shri Ram Nihal Shukla, who was a freedom fighter. She appeared in the examination for the course of Bachelor of Ayurvedic Medicines and Surgery (B.A.M.S.) conducted for the year 2012 and was declared pass therein. According to the writ petitioner, since she is the daughter''s daughter of freedom fighter late Shri Ram Nihal Shukla and therefore, was entitled to get admission against the quota earmarked for freedom fighter category. However, writ petitioner''s claim was rejected by the respondents/State authorities on the ground that this benefit is available only to sons and daughters of freedom fighter''s son. In other words, the case of the petitioner was rejected saying that because she happens to be the daughter''s daughter of a freedom fighter and hence, not entitled to get the benefit of quota of freedom fighter. It is against this rejection, the petitioner felt aggrieved and filed this writ petition challenging rejection of her candidature for its consideration in freedom fighter category.
Learned counsel appearing for the petitioners at the outset brought to our notice that this very issue had come up for consideration before the learned Single Judge in the case of Dr. Dhanaram singrole and Another Vs. State of C.G. and Others, , wherein the learned Single Judge repelled this objection and while interpreting these very words had held that freedom fighters daughter''s son/daughter are also entitled to get its benefit. According to learned counsel, once the State accepts the interpretation and also implement it for long seven years so far as P.M.T. admissions are concerned, then there is no reason to deny such benefit in other courses. It was, therefore, urged that there does not appear to be any justification on the part of the State to confine such benefit to P.M.T. course only and not extending to other courses, such as the one in which the petitioners had applied for. In other words, according to the learned counsel, the State cannot then apply two different principles for the same issue and must apply uniform policy for extending its benefit to all courses.
Learned counsel appearing for the State did not dispute this position that the State has accepted the interpretation made in the case of Dr. Dhanaram Singrole (supra) and has also implemented it by making necessary amendments insofar as admissions in P.M.T. are concerned. All that his argument was that so far as Rule in question is concerned, it is for BAMS course and hence, interpretation of PMT Rules may not apply.
Having heard learned counsel for the parties and on perusal of the record of the case, we are inclined to allow these writ petitions in part as indicate below.
We have perused the order passed by the learned Single Judge in the case of Dr. Dhanaram Singrole (supra), wherein the learned Singe Judge interpreting this claim answered it against the State as under:-
Now coming to the question raised by respondent No. 4 that since petitioner No. 2 is not the son''s son of a freedom fighter, therefore, he is not entitled for the benefit. For this purpose learned counsel argued that the Rules are published in Hindi and as per legal glossary Poutra means son''s son and daughter''s son is called Dohitra. if we look into the historical background for making reservation for the children and grandchildren of a freedom fighter, it shows that this reservation was made for the reason that the freedom fighters who fought for the independence of the country and killed through Government agency or hanged in connection with the freedom movement or were permanently disabled for earning his livelihood as a result of an injury by a Government agency in connection with the freedom movement during the period from 1919 to 1946, as they sacrificed their lives for the freedom of the country and they were engaged in freedom movement, therefore, they were not able to look after their children, as such this reservation was made to mark their sacrifice and contribution for liberation of the country from colonial rule. This reflects from perusal of the sub-rule (3)(b) of Rule 6 of M.P. Pre-Medical Examination, 1973. It has further been envisaged in this Rule that in order to obtain benefit of freedom fighter category a certificate issued by the Collector of the district concerned is required to be furnished certifying that candidates parent/grand parent is/was a freedom fighter and his/her name is in the register of freedom fighters maintained in the District. It is further mentioned in the rules that the decision of the Government whether the particular person falls under the freedom fighters category or not will be final. Perusal of Webster''s 3rd Law International Dictionary, Black''s Law Dictionary, Cambridge International Dictionary of English shows that grandson means the son of a person''s son''s or daughter''s. As per Webster''s Dictionary grandchild means a son''s or daughter''s child. Therefore, as per English meaning a son or daughter of a daughter is also included in the category of grandchild, as per Explanation-4 of sub-rule (5) of Rule 4, as has been mentioned above, prescribes that in this connection a certificate will be issued by the Collector and that certificate is to be treated as final. In the present case the Collector concerned has issued a certificate in favour of the petitioner No. 2 (Annexure P-16) entitling him to avail benefit under the freedom fighters quota, therefore, respondent No. 4 is not entitled to challenge this aspect of the case. It should be left to the Government to decide which children of freedom fighter should be entitled for benefit. Even otherwise the principle behind reservation is that the children and grandchildren of a freedom fighter should be given reservation, then the children of the daughter of a freedom fighter cannot be excluded on any principle and one way, if it is allowed so then that decision would be gender biased, which cannot be permitted. On account of involvement of father of a daughter in the freedom movement, daughter had equally suffered or incurred disabilities as the son, therefore, on this ground also the objection raised by learned counsel for respondent No. 4 is not tenable.
In our considered opinion, the State can not apply different yard sticks for giving benefit of such clause while granting admission in educational stream. Indeed there can be no justifiable reason for applying different yard stick.
The object behind the clause is to extend benefit to the children born in the family of freedom fighters, who sacrificed their lives for the country in their youth. It is essentially in the nature of reward for their family members. One can not possibly make any distinction between their (freedom fighter) son''s son/daughter and daughter''s son/daughter because, both are freedom fighter''s grand children to whom he gives equal love and affection without making any distinction. For him both are equal in all respect.
In every custom, it is the pious obligation of father and mother to perform the marriage of their daughter who goes out of her parental family. In fact even after her marriage, she continues to retain her blood relations with her mother and father.
The Hindu Succession Act gives daughter equal right since her birth with that of other members of the family to claim share in the estate of her father/mother dying intestate. The Succession Act does not make any distinction between the son and daughter so far as their respective rights to claim equal share in the estate of their parents is concerned. This right of daughter is kept intact even after her marriage.
As rightly taken note of by the learned Single Judge in Dhanaram Singh''s case supra, the dictionary meaning of the word - grand son means son of son or/and son of daughter. We therefore, find no rational behind excluding the son/daughter of freedom fighter''s daughter for taking benefit of the clause, which gives preference in seeking admission in educational courses only because he/she is his daughter''s son/daughter and confine it to only their (freedom fighter''s) son''s son/daughter. When no law is pointed out showing some kind of distinction between the son and the married daughter of any person, qua their parents, then, we fail to appreciate as to how the state can bring about this fine distinction in a case in hand. Such exclusion in our opinion, would equally frustrate the object underlined in Article 15 of the Constitution, which enables the State to make special provisions for woman and children. If on the one hand, the Constitution enables the State to provide special benefit for the woman and children in any field so that they get adequate representation in society then on the other hand we find that it is being taken away partially without any reasonable justification.
In a case of this nature, we are of the view that the State is not required to see as to whether any family member of freedom fighter category has applied to seek admission in ''A'' category of educational course or ''B'' category of course. In our opinion, It has no nexus with the object for which the clause for giving such benefit is enacted and nor it has any significance while deciding his/her right to apply. That apart, once the State decide to extend the benefit of such clause in principle to both i.e. son and daughter of freedom fighter and their respective children by accepting the interpretation of this court made in Dhanaram''s case supra then as a necessary corollary, its benefit has to be extended to all educational courses regardless of the nature of discipline. The State must remember that the object of extending the benefit is not to seek admission in particular course but it is general in nature.
It is the exclusive prerogatives of such candidate to apply in any stream/course/discipline of his/her choice for pursuing his/her studies. In such case, the State should only verify as to whether the candidate applying under the freedom fighter category is the son or daughter or the grand son or grand daughter of a freedom fighter as per the requirement of the Rules framed in that behalf and secondly whether he/she has cleared the examination to enable him/her to seek admission. Once these requirements are held proved by the concerned candidate then he/she becomes eligible to claim the benefit of freedom fighter quota earmarked for securing admission in any educational course.
In our opinion, therefore, here comes the application of the principle of reasonableness in judging the action of the State. In this connection, we consider it apposite to refer to the words of learned Judge Vivian Bose which his Lordship''s had made in the case of The The State of West Bengal Vs. Anwar Ali Sarkar, in his classic concurring opinion observing inter alia that any action of the State which affects the citizen''s rights, if found to be either unreasonable or arbitrary, then it attracts the rigor of Article 14 and empower the Court to examine its legality and correctness.
It is for this reason, we do not find that there was any rationale behind its application only to one discipline (PMT) and not extending to other discipline.
In our view, therefore, the clause in question quoted supra should have been read to provide, the writ petitioner, a right to apply for seeking admission in BAMS quota, because it was not disputed by the State that the writ petitioner is the daughter of freedom fighter''s daughter and being his grand daughter is entitled under the clause to avail the benefit of freedom fighter quota to seek admission in BAMS course subject to her proving other requirements for securing admission.
In the light of foregoing discussion, we answer both the questions in affirmative and in petitioner''s favour.
Since we have interpreted the Rule in petitioner''s favour and hence the question as to whether it is ultra vires or intra vires may not now arise for consideration. It thus need not be dealt with.
We accordingly keeping in view the guidelines laid down by Supreme Court in the case of Asha Vs. Pt. B.D. Sharma University of Health Sciences and Others, direct the respondents to consider the case of the petitioner of Writ Petition (C) No. 1382/2012, who is otherwise found to be eligible for being considered for the current academic session because it was stated at the bar that second counseling is yet to take place and depending upon her merit (it being one of the most important criteria in giving admission), pass appropriate orders. So far as writ petitioner of Writ Petition (C) No. 6282/2011 is concerned, she was the candidate for 2011-12 academic session and hence no direction can be given in her favour for her consideration of the case to the respondents. She is however held entitled to get benefit of interpretation in future.
Accordingly and in the light of the foregoing discussions, writ petitions succeed and are allowed in part.
No order as to costs. The original order shall be kept in the records of Writ Petition (C) No. 1382/2012 and the copy of the same shall be kept in the records of another connected Writ Petition (C) No. 6282/2011.