U. VijayalakshmiMinor v. The Convenor

J U D G M E N TBoth these writ petitions are based on similar facts andcircumstances and raise a common question of law. Therefore, boththe writ petitions were heard together and shall be governed by thiscommon judgment.2. The writ petitions have been filed by the children oftwo employees of Oil and Natural Gas Corporation Limited, in shortONGC, seeking admission to MBBS course against Government quota.The question relates to admission for the academic year 2004-05.The main issue relates to eligibility of the candidates on the basisof paragraph 2.6 of the Information Bulletin issued by CENTAC. Therelevant portion of paragraph 2.6 is extracted hereunder :- “2.6 Pondicherry UT CandidatesCandidates who are residents of Pondicherry UT areeligible for admission to all the degree courses. Acandidate is considered to be of Pondicherry Resident(Pondicherry UT Candidate) provided he / she is an Indiannational and satisfies at least one of the followingcriteria....3. Children of Central / State Government Servants /Defence Personnel / Central Paramilitary Forces / Employeesof Public Sector Undertakings wholly or substantially runeither by the Central Government or by the Pondicherry UTadministration posted and serving in the Pondicherry UT forat least a minimum period of one year prior to the lastdate of submission of application.”3. The case of the petitioners is that they being thechildren of employees of Public Sector Undertaking, fully orsubstantially run by the Central Government (in ONGC), were servingunder ONGC at Karaikal within the Pondicherry Union Territory, for aminimum period of one year prior to the submission of theapplication, should have been considered eligible as per sub-paragraph (3) of paragraph 2.6 of the Information Bulletin issued byCENTAC. 4. In the counter affidavit filed in W.P.No.23862 of 2004,it has been indicated that the petitioner in the said writ petitionwas not considered as Pondicherry resident as the ResidenceCertificate produced by the candidate was not in the mannerprescribed in the CENTAC Bulletin. It is further indicated that thecandidate has not obtained the Residence Certificate from the HeadOffice (GGM-Asset Manager) and the Certificate issued by the SeniorP & A Officer was not considered sufficient. It is further https://hcservices.ecourts.gov.in/hcservices/ indicated that in case the candidate produce the required servicecertificate as prescribed by CENTAC during the second phase ofcounselling, the candidate would be offered seat as per the meritrank. It is further stated that the matter was taken to the noticeof the GGM-Asset Manager, ONGC, Karaikal by CENTAC and such GeneralManager has sent a letter indicating that ONGC operations are spreadin many locations, even outside the Pondicherry UT area, and atpresent 1125 employees were working at the Karaikal Asset, Baseoffice at Neravy, Karaikal. In the counter it is also indicatedthat out of such employees working in ONGC, only 350 are posted andworking in the base office at Neravy, Karaikal and others wereworking at the Rigs and product Installations in Tamil Nadu on 14days on/off duty. They are not physically working at Karaikal andthey never come to Karaikal even after completion of work andstraight away go to their home town or wherever their family membersare living. The employees who are working in the Rigs/ProductionInstallations get two different Certificates, one as if they areworking in Karaikal and another as if they are working in TamilNadu.5. The format of Certificate required to be given has beenindicated. Form-D relates to Residence Certificate. Variousalternative forms are indicated therein. So far as the certificaterequired for the petitioners is concerned, it has been indicated inparagraph 3 of such Form, which is to the following effect :- “3. Certified that Shri./Smt. ....................father/mother of Shri./Smt./Kumari. .....................is an employee of Central/State Government / DefencePersonal / Central Paramilitary Forces/ .........(a publicsector undertaking wholly or substantially run by theCentral Government / UT Administration) and that he/she ispresently posted and serving in Pondicherry UT)since ........... (Please indicate the date from whichhe/she has been serving in Pondicherry UT).”6. So far as the petitioner in W.P.No.23863 of 2004 isconcerned, the Certificate was issued by the GGM-Asset Manager,which indicated that the father of the petitioner “... is presentlyposted and working in Karaikal Asset, Karaikal in Pondicherry U.T.,since 06.10.1994 continuously without break, on 14 days ON/OFF dutypattern.” So far as the petitioner in W.P.No.23862 of 2004 isconcerned, the Certificate dated 28.5.2004 was initially issued bythe Senior P & A Officer in the prescribed format on behalf of ONGCwherein it was indicated that the father of the petitioner is anemployee of ONGC, Karaikal Asset, Karaikal and he is presentlyposted and serving in Pondicherry UT since 5.3.1986. Subsequently,on 5.8.2004, a similar certificate was issued by GGM-Asset Manager.So far as W.P.No.23863 is concerned, there is no dispute that thecertificate was issued in the proper format by the proper officer. https://hcservices.ecourts.gov.in/hcservices/ It is thus obvious that both the certificates were valid being inthe prescribed format.7. Learned counsel appearing for each of the petitionerhas contended that since Residence Certificate in the prescribedformat has been given, the respondent should not have refusedadmission merely on the basis that the father of the petitioner wasnot physically working within the territory of Pondicherry. It hasbeen further contended that the nature of work of the petitioner’sfather is such, which requires him to work in the Rig for 14 dayson/off pattern and merely because the Rig was Off-shore, thepetitioner’s case should not have been ignored. The petitionershave placed reliance upon the decision of the Supreme Court reportedin 2004(4) CTC 796 (DOLLY CHHANDA v. CHAIRMAN, JEE AND OTHERS) insupport of their contention that even though the year was over, theyshould be admitted this year as they were not at fault and the non-selection last year was on account of the illegality committed bythe respondents.8. Learned Government Pleader (Pondicherry) appearing forthe respondent has contended that even though the office was atKaraikal, the concerned persons were not working within Pondicherry,but were working in the Rigs(obviously Off-shore), and they were notstaying within Pondicherry but staying in Chennai and because ofsuch factor, the two students in question were not admitted. It hasbeen further contended that the academic year during which thepetitioners sought for admission being over, no direction for theiradmission can be given during the subsequent year on the basis ofthe earlier entrance examination. In support of his lattercontention, the Government Pleader has placed reliance upon thedecision of the Supreme Court reported in (2000) 9 SCC 115 (RAJIVKAPOOR AND OTHERS v. STATE OF HARYANA AND OTHERS). 9. An analysis of clause 3 of paragraph 2.6 makes it clearthat the Central Government servant or the State Government servantor the Defence Personal or the Central Paramilitary Forces or theemployee of the public sector undertaking wholly or substantiallyrun by the Central Government or by the Pondicherry Union Territory,whose child is seeking admission, should be “posted and serving inPondicherry Union Territory at least for a minimum period of oneyear.” 10. The contention of the respondents seems to be to theeffect that even though such persons are employed under ONGC, whoseOffice is in Karaikal within the Pondicherry Union Territory, suchemployees were not physically posted and serving in Pondicherryinasmuch as they were discharging their duty for 14 days on and offpattern on the Off-shore Rigs which were installed in the Highseas https://hcservices.ecourts.gov.in/hcservices/ and at any rate such employees were also not physically residingwithin the jurisdiction of the Pondicherry and they were residingwithin Tamil Nadu. 11. Since the Office is at Karaikal, the Off-shore Rigs,which were established in the Highseas, in normal course should benotionally considered as coming within the jurisdiction of Karaikaland in that sense it can be said that such persons were posted andserving in the Pondicherry Union Territory. It is of course truethat during the 14 days off period such persons had actual residencewithin Tamil Nadu, but such residence within Tamil Nadu is a matterof mutual convenience between the employer and the employee andcannot be a ground to deny eligibility, which is on the basis thatthe concerned employee was "posted and serving" in Pondicherry. Theplace of actual residence is not a relevant consideration forconsidering the eligibility in the light of Clause (3) of paragraph2.6 of the Information Bulletin. Any other interpretation is likelyto result in an artificial barrier for the purpose of entitlement ofsuch children, whose parents are legally employed under ONGC withinKaraikakl, but physically working in the Highseas. 12. In the present case, both the petitioners hadfurnished certificates issued by the Head of the Department and evenassuming that initially one such certificate was issued by theSenior P & A Officer, on such technical consideration, thecertificates need not have rejected, particularly, when subsequentlyproper certificate had been obtained. It is not disputed that twostudents in question would have otherwise got selected if theirapplication would not have been ignored on a hyper-technical view. 13. The next question is as to whether a direction shouldbe issued for admission of the petitioners against Government quotaon the basis of the marks obtained during 2003-04 common entrancetest.14. For the current academic session, as per the judicialorder passed by the High Court, the Government quota is fixed at50%. Two seats are directed to be kept vacant by the interim orderpassed by this Court so far as the present writ petitions areconcerned.15. Learned counsel for the petitioners has submitted thatsince the petitioners were not at fault and the petitioners couldnot get admission during 2004-05 on account of the mistake committedby the CENTAC, in the interest of justice, the petitioners should bedirected to be admitted during the present session on the basis ofthe marks which they had obtained in the common entrance test heldfor the year 2004-05. In support of such submission, the learnedcounsel for the petitioners has placed reliance upon several https://hcservices.ecourts.gov.in/hcservices/ decisions of the Supreme Court.16. In Civil Appeal No.4051 of 2004 disposed of on12.7.2004, the question raised was almost similar. In the saidcase, the Madras High Court while upholding the contention of thecandidate that he was more meritorious than the other candidateselected, directed admission of the candidate during the sameacademic session and further directed the State Government to seekfor permission to create additional seat. Such direction waschallenged by the Medical Council of India in the Supreme Court.The Supreme Court while upholding the contention of the MedicalCouncil of India that no such direction for creation of additionalseat should be issued, observed :“However, the Respondent No.1 writ petitioner hasbeen pursuing his studies pursuant to the impugned orderatleast from the beginning of this year. In that view ofthe matter, we are of the view that the respondent writpetitioner should be granted admission for the academicyear 2004-05 without any further counselling within thepermissible intake limit.”In other words, the petitioner in the said case was allowed to getadmission during the next year.17. Learned counsel for the petitioners further reliedupon the decision of the Supreme Court in Civil Appeal Nos.2423 to2425 of 2005 disposed of on 4.4.2005. The appeal was filed by theDental Council of India against the direction of the High Court Inthe said case, one candidate Dr. Deepa was ranked higher than thatDr. Pravina, but Dr. Pravina had been admitted. The High Courtfound that neither Dr. Pravina nor Dr. Deepa were at fault anddirected creation of supernumerary seat for accommodating Dr. Deepain the course for the Academic Year 2004-2005. The Supreme Courtwhile allowing the Civil Appeals filed by the Dental Council ofIndia and the Selection Committee and observing that direction forcreation of additional seat should not have been issued, held asfollows :-“The question still remains about accommodatingDr.Deepa in the course, above-referred. Having regard tothe peculiar facts of the case, we direct that in theAcademic Year 2005-2006, Dr. Deepa shall be accommodated inM.D.S. (Orthodontics) in Ragas Dental College. We may notethat by order dated 14th March, 2005, it was directed thatone seat in M.D.S. (Orthodontics) shall not be filled forthe Academic Year 2005-2006. The admission granted toDr.Deepa in the aforesaid college would be out of theGovernment quota. The learned counsel appearing for theCollege has no objection in this regard. We are also of https://hcservices.ecourts.gov.in/hcservices/ the view that,having regard to the peculiar facts of thecase, it is the only proper course in order to dosubstantial justice between the parties without it beingtreated as a precedent.”18. It is of course true as pointed out by the learnedcounsel for the respondents that the aforesaid order was passed onits own peculiar facts and the Supreme Court itself observed thatsuch order should not be treated as a precedent. However, the factswere almost similar.19. In 2004(4) CTC 796 (DOLLY CHHANDA v. CHAIRMAN, JEE &OTHERS), a Bench consisting of three Honourable Judges wasconsidering the question of admission to MBBS Course almost undersimilar circumstances. In the said case, in respect of specialcategory reserved for children or widow of personnel of armed orparamilitary forces killed or disabled in action, the petitioner wasnot selected as the certificate produced by the petitioner was foundto be not in order by the Committee. The Orissa High Court hadupheld the action of the Selection Committee by judgment dated31.10.2003. The Supreme Court found that non-selection of thepetitioner was on a highly technical view, even though thepetitioner was actually eligible. The Supreme Court thereafterobserved :-“9. The appellant undoubtedly belonged to reserved MIcategory. She comes from a very humble background, herfather was only a Naik in the armed forces. She may nothave noticed the mistake which had been committed by theZilla Sainik Board while issuing the first certificatedated 29.6.2003. But it does not mean that the appellantshould be denied her due when she produced a correctcertificate at the stage of second counselling. Those whosecured rank lower than the appellant have already beenadmitted. The view taken by the authorities in denyingadmission to the appellant is wholly unjust and illegal.10. The appellant had qualified in the JEE-2003 butthe said academic year is already over. But for thissituation the fault lies with the respondents, who adopteda highly technical and rigid attitude and not with theappellant. We are, therefore, of the opinion that theappellant should be given admission in MBBS course in anyof the State medical colleges in the current academic year.11. The appeal is accordingly allowed with costs. thejudgment and order dated 31.10.2003 of the High Court isset aside. The respondents are directed to give admissionto the appellant in any one of the State medical collegesforthwith. In case the State seats have already been filedup, one extra seat shall be created for her.”(Emphasis added) https://hcservices.ecourts.gov.in/hcservices/

20. As against the aforesaid decisions or orders of theSupreme Court, the learned counsel appearing for the respondentplaced reliance upon the decisions of the Supreme Court reported in(2000) 9 SCC 115 (RAJIV KAPOOR AND OTHERS v. STATE OF HARYANA ANDOTHERS), (2002) 7 SCC 258 (MEDICAL COUNCIL OF INDIA v. MADHU SINGHAND OTHERS) and (2005) 2 SCC 65 (MRIDUL DHAR (Minor) AND ANOTHER v.UNION OF INDIA AND OTHERS). So far as the later two decisions areconcerned, it has been stated therein that no direction should beissued for admission during mid-course and the time schedule foradmission should be strictly complied with and there should not beany increase of seats. The ratio in those decisions is notapplicable as in the present case the question is as to whether thepetitioners can be accommodated on the basis of the result of theearlier year. 21. In (2000) 9 SCC 115 (cited supra), the dispute wasrelating to admission to Postgraduate degree and diploma courses inMedicine from amongst the Haryana Civil Medical Service candidatesfor the academic session 1997. The petitioner before the High Courtclaimed that, as per the prospectus, selection for admission to bemade only on the basis of the marks obtained by a candidate in theentrance examination. But the contesting respondents as well as theState Government contended that the marks obtained in the entranceexamination only entitled them to be called for interview, beingonly a qualifying test and the final selection against the reservedseats was required to be made by the Selection Committee on thebasis of the specified criteria stipulated by the Government fromtime to time, based on the academic career, experience, ruralservice, annual confidential reports and marks obtained at theinterview. The High Court, however, accepted such contention of thepetitioners and directed cancellation of the admission given to thecontesting respondents on the basis that selection is to be madeonly on the basis of merit, as per the marks obtained in the writtenentrance examination. The contesting private respondents before theHigh Court filed appeal. The State of Haryana intimated that theorder of the High Court had been implemented and the State do notintend to unsettle the position insofar as the already selectedcandidates were concerned but the question of law should be decided.The Supreme Court came to the conclusion that the High Court fellinto error in sustaining the claim of the writ petitioners andobserved that merits of such candidates were required to be adjudgedin terms of the criteria contained in the Government Orders.However, even though the Supreme Court differed from the conclusionof the High Court, it refused to pass any order regarding admissionof the successful appellants in any subsequent academic year and didnot interfere with the admission of the writ petitioners(Respondents before the Supreme Court). It is profitable to quotethe relevant observations made by the Supreme Court :- https://hcservices.ecourts.gov.in/hcservices/ “16. The dispute relates to the academic session ofthe year 1997 and we are in 2000. To utilise the seatsmeant for the next academic year by accommodating thosecandidates of 1997 vintage would amount to deprivation ofthe legitimate rights of those who would be in the fray ofcontest for selection, on the basis of their inter se meritfor the session of 2000, taking into account theperformance of the candidates of 1997 in that year. Thesuggestion to create additional seats, apart from theobjections from the State, cannot also be acceded to forthe purpose of admitting only the appellants inasmuch asany additional seats even if allowed to be created during aparticular year must be filled up only on the basis of thestandard and merit performance of the candidatesparticipating in the contest for the said year. Thatapart, some of the appellants appear to have got admittedinto diploma courses, having not been selected for degreecourses and there is no scope for adjusting the period ofstudy put in by them while pursuing diploma course, as onespent for PG degree course. There is also a positiveprohibition for a candidate pursuing PG diploma course in aparticular discipline to claim to do PG degree course in adifferent discipline.” (Emphasis added)22. The aforesaid decision of the Supreme Court wasfollowed by a Division Bench of this Court in W.A.No.1441 of 2005dated 6.9.2005. In the said case, the question related to admissionto Post Graduate course, namely, M.D.S. The last date for admissionto the course was 31.5.2004. On that date itself, a successfulcandidate, who had been selected against All India Quotadiscontinued for admission and as such one vacancy arose. Thelearned single Judge in a writ petition filed in March, 2005, i.e.,after about 10 months, directed that another candidate should beadmitted during the academic session 2005 or academic session of2006. The Division Bench reversed such decision by observing :-“9. Assuming the said Archana, who was accommodatedunder All India quota discontinued her studies, the samecannot be allotted to the first respondent herein since anysuch vacancy if at all goes to the reserved category. Therecords placed before us disclose that the said Archanadiscontinued her studies by giving a letter on 31-05-2004afternoon, but the first respondent herein has chosen tofile the writ petition only on 22-03-2005 i.e., after lapseof one year. The decisions of the Honourable Apex Courtextracted above show that admitting students in midstream,even if seats are unfilled not permissible, the telescopingof unfilled seats of one year with permitted seat of thesubsequent year also prohibited and the utilisation of https://hcservices.ecourts.gov.in/hcservices/ seats meant for the next academic year by accommodatingcandidates of previous academic year would amount todeprivation of legitimate right of those who would be inthe fray of contest for selection, on the basis of theirinter se merits for the next academic year. Admittedly,the said vacancy also not filled up by the appellants after31-05-2004 in view of the decisions of the Honourable ApexCourt as well as the guidelines issued by the DirectorGeneral of Heath, New Delhi, hence the argument of thefirst respondent that she should have been accommodated inthe vacancy which resulted in discontinuation of the saidArchana is to be rejected.” (Emphasis added)23. The decision of the Supreme Court in Dolly Chhanda’scase was distinguished by observing that in the said case, the writpetition had been filed immediately and candidates who had securedlower marks or lower rank were admitted.24. The reluctance of the Courts to adjust a student inthe subsequent year's admission in respect of Post Graduate Courses,which have less intake capacity and are much more "merit oriented"need not percolate down in the matters relating to admission to MBBSand the students who would be deprived this year as a consequencecan have their chance in the coming years. The two unreporteddecisions of the Supreme Court and the decision in Dolly Chhanda'scase reflect a less inflexible judicial policy at least in thematters relating to admission to MBBS, where the illegality is thatof the Government or the Selection Committee. 25. The course adopted by the Supreme Court in DollyChhanda’s case as well as two unreported orders appears to be veryapt and proper to be applied in the peculiar facts and circumstancesof the present cases. In this connection, it is also necessary toemphasise that the decision in Rajiv Kapoor’s case isdistinguishable in the sense that in the said case the fault was notof the State (Even though the fault was not of the candidate).Moreover, in the said case, the question related to admission in thePost Graduate course and some of the appellants had already takenadmission to Diploma courses and there has been specific prohibitionthat those who have already admitted to Diploma courses could nottake admission to said Post Graduate course.26. In the present case, for the current year two seatshave already been reserved as per the direction issued by thisCourt. If the applications of the petitioners would not have beenillegally rejected by the respondent, there is no dispute that suchcandidates should have been selected during the year 2004-05. Asthe applications of the petitioners were illegally rejected, other https://hcservices.ecourts.gov.in/hcservices/ students who secured less marks had been admitted. The fault was ofthe respondent and not that of the students. 27. The petitioners were vigilant enough and have beenpursuing the writ petitions from the very inception and it cannot besaid that the petitioners was guilty of any laches. The petitionerscome within the Other Backward Category. Since the petitioners werenot at all at fault and the default was on the part of the StateGovernment in surrendering several seats, equity tilts in favour ofthe writ petitioners. It would be indeed a sad reflection on thejudicial system if the petitioners are told "even though you havecome to Court with all promptitude and had a right to be admittedduring a particular year, the Court cannot come to your rescuebecause the Court could not decide the matter immediately and,therefore, your writ petitions have become infructuous". 28. The delay in deciding cases in courts has indeedassumed alarming proportions. Even though the courts themselves mayor may not be held responsible for the inordinate delay in decidingcases in view of the exploding dockets, the litigants are not to beblamed in any manner if their cases cannot be taken up within areasonable time and it would be indeed very ironical if the case ofa deserving petitioner would be dismissed and no relief would begranted merely because it was impossible for the court to take upthe case within a reasonable time. In this context, I feel, it ismy obligation to quote the observation made by the Supreme Court in(1980) 2 SCC 593 (GUJARAT STEEL TUBES LTD. AND OTHERS v. GUJARATSTEEL TUBES MAZDOOR SABHA AND OTHERS), of course in a differentcontext :-“164. This litigation, involving many workmen livingprecariously on poor wages amidst agonising inflation and aManagement whose young budget, what with steel scarcity,may well be shaken by the burden of arrears, points to thechronic pathology of our Justice System — the intractableand escalating backlog in the Forensic Assembly Line thatslowly spins Injustice out of Justice and effectually,wears down or keeps out the weaker sector of Indian life.This trauma is felt more poignantly in labour litigationand the legislature fails functionally if it dawdles toradicalise, streamline and simplify the conflict resolutionprocedures so as to be credibly available to the commonpeople who make up the lower bracket of the nation. Thestakes are large, the peril is grave, the evils are worsethan the prognostics of Prof.Laurence Tribe (of the HarvardLaw School); https://hcservices.ecourts.gov.in/hcservices/ If court backlogs grow at their present rate,our children may not be able to bring alawsuit to a conclusion within their lifetime.Legal claims might then be willed on, generationto generation, like hillbilly feuds; and theburdens of pressing them would be contractedlike a hereditary disease.165. Law may be guilty of double injustice when it is toolate and too costly for it holds out remedial hopes whichpeter out into sour dupes and bleeds the anaemic litigantof his little cash only to tantalise him into a systemequal in form but unequal in fact."29. What was said in the context of disputes involvingLabour Law applies with equal, if not greater, vigour to legaldisputes relating to admission in Education Institutions.30. Having regard to all these peculiar facts, in thepresent case, I deem it fit and proper to give a direction that thepresent petitioners should be admitted during the relevant academicsession as per the schedule approved and emphasised in Mridul Dhar’scase. In normal course, the admission against Government quota isto take place before 31.8.2005. However, for sufficient reasons,such admission can take place on or before 30.9.2005. 31. Accordingly, the writ petitions are allowed and theState Government is directed to sponsor the candidature of thepetitioners against the reserved seats kept vacant as per the orderof this Court. This direction should be complied with within aperiod of one week from the date of receipt of a copy of the order.There would be no order as to costs./Sd/Asst.Registrar/true copy/Sub Asst.Registrardpk https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary, The Government of Pondicherry, Health Department, Chief Secretariat, Pondicherry.2.The Convenor, Centralised Admission Committee (CENTAC), Pondicherry Engineering College, Pondicherry 605 014.3. The Registrar,Pondicherry University, Kalapet, Pondicherry 605 014.4. The Chairman, Medical Council of India, Opposite to Mata Sundari College for Women, New Delhi 118 002. 5. The Public Prosecutor,Pondicherry2 ccs to Senior Government Pleader, Pondicherry SR. Nos. 39278, 392792 ccs to Mr.K.S. Ganesh Babu, Advocate, SR. 39201 , 39200 WP.Nos.23862 &23863/2004GK (CO)kk 20/9