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1997 Supreme(Bom) 477
IN THE HIGH COURT OF BOMBAY
Ashok A. Desai S.S. Parkar, JJ.
Shri Vijay Dattatraya Bhilwadikar ..... Petitioner.
Versus
The State of Maharashtra another ..... Respondents.
Writ Petition No. 3106 of 1997, decided on 5-9-1997.
Advocates appeared :
S.M. Paranjape, for petitioner.
Mrs. S.S. Gokhale, A.G.P., for State.
Headnote:Admission to Medical College Rules
Rule 3-See Constitution of India, Articles 14 and 226.
Rule 3-See Constitution of India, Article 226.
Articles 14 and 226-Admisions to Medical Colleges Rules-Rule 3-Petitioner an armed force personnel-Son applying for admission to medical college-Denied-Ground-Inspite of reservation for defence personnel, conditions must be fulfilled-Being domicile of Maharashtra and passing SSC and HSC from Maharashtra-Held-Due to transferable post it is not possible practically-Rule is unjust, unreasonable.-According to Rule 3 of Admission to Medical College Rule in order to be eligible for applying to the reserved category of Defence Personnel the applicants parent must be a member of Armed Forces and domiciled in the State of Maharashtra. In addition the applicant must have passed qualifying examination i.e. HSC and SCC Examinations from the recognised college/school in the State of Maharashtra. According to counsel for the petitioner, by virtue of serving in Armed force, parent was transferred outside Maharashtra and, therefore, the condition that the child also must have passed SSC from the State of Maharashtra is absolutely unreasonable condition, secondly, it was contend that the unreasonable discrimination has been made between the children of the persons placed in the situation of the petitioner and the other defence personnel who are transferred to Maharashtra State from outside Maharashtra. It is pointed out that so far as the petitioner was concerned, who was domiciled in the State of Maharashtra, his children are required to pass not only the qualifying examination i.e. HSC from the State of Maharashtra but also SSC examination, however, in the case of the defence personnel domiciled outside Maharashtra but transferred to State of Maharashtra, there is no condition of passing SSC examination from the State of Maharashtra and, therefore, Rule 3 ought to be struck down as being discriminatory when the rule seeks to make discrimination in respect of two persons who are equally situated. There is substance in the contention raised by counsel on behalf of the petitioner. The petitioner who belongs to the active defence personnel and had to work outside Maharashtra from time to time due to exigency of service cannot be expected to leave his children in the State of Maharashtra for ,the purpose of doing SSC although the petitioner is domiciled in Maharashtra. It may not have been convenient or feasible for him to leave his son in the State of Maharashtra for the purpose of doing his SSC while the petitioner along with his wife and other family members were staying outside Maharashtra at the place where he was posted for duty. Such rule works hardship and is absolutely unreasonable unfair and unjust.
Article 226-Admissions to Medical Colleges Rules, Rule 3-Grant of interim relief-Denial-Rule 3 demanding SSC, HSC to have been passed from Maharashtra-Rule struck off as unjust-Contention-In absence of interim relief all seats mere full-Held-Respondent has option to apply for a fixed date of hearing with notice to them-Contention untenable.-Leamed AGP points out that since interim relief was not granted in this case all seats must have been filled and it will not be possible to grants admission to the son of the petitioner by adding to the seats unless other facilities are available counsel, however, has not been in a position to point out whether all seats are filled up and whether it is possible to accommodate the petitioners son. Though interim relief was refused, liberty was given to apply for filed date of hearing and the respondents were having notice of this petition.
2.By this writ petition under Article 226 of the Constitution the petitioner has challenged the rejection of the application made by his son for admission to medical course in Bombay. The petition also seeks to challenge the provision of eligibility contained in Rule 3 enacted by the Government for the purpose of giving admission to the children of Defence Personnel in Government Medical and Dental Colleges.
3.The petitioner is serving in the Indian Army holding the rank of Lieutenant Colonel. He was commissioned in the Indian Army on 12-5-1974 and was posted in State of Punjab, U.P. and Maharashtra between the years from 1974 to 1980. After the birth of his son by name Shishir in July 1980 he was posted in the State of Rajasthan, U.P. Punjab and Assam. His son had passed his S.S.C. from Punjab and thereafter did his 11th and 12th standard in Science from Maharashtra. He passed his H.S.C. examination by obtaining 92% marks in Physics, Chemistry and Maths Group and 91.66% marks in the Group of Physics, Chemistry and Biology and about 90% marks in the aggregate. He had applied for admission to the Medical college in the prescribed form from the reserved category for children of defence personnel, Government of Maharashtra has reserved 5% seats in the Medical and Dental Course for the children of Defence Service Personnel and Ex-Defence personnel. The relevant rule framed by the Government for the purpose of the eligibility of such children is Rule 3 of Annexure 'C' to the Rules for 1997-98 which is as follows:
"To be eligible for a seat in defence category the parent of such an applicant who was/is a member of the Armed Forces must be a domicile of Maharashtra State. In addition to this, applicant must have passed qualifying examination and S.S.C. examination from the recognized school/college situated in the State of Maharashtra. However this condition is not applicable to Def. 3 below. The applicant will be required to produce a Domicile Certificate in respect of his/her parent, issued by District/Metropolitan Magistrate."
4.The said 5% seats in turn are divided as per the Break-up laid down in para 4 thereof which is as follows:
"Out of the seats so reserved for particular university area, the seats will be distributed in following sub-categories.
(a) Def-1 - For a son/daughter of an ex-Defence Service personnel.
(b) Def-2 - For a son/daughter of Active Defence Service personnel.
(c) Def-3 - For a son/daughter of Active Defence service personnel transferred to Maharashtra State from out-side Maharashtra.
For selection against Def-3 category, an applicant must be able to satisfy that while the parent was duty-bound to move out to Maharashtra State by virtue of parent's bona-fide transfer in public interest, the applicant had to continue his studies for the H.S.C. (or equivalent) examination, as he could not shift to Maharashtra State in the middle of the academic term."
5.According to Rule 3, in order to be eligible for applying to this reserved category the applicant's parent must be a member of Armed Forces and domiciled in the State of Maharashtra. In addition the applicant must have passed qualifying examination i.e. H.S.C. and S.S.C. Examinations from the recognised college/school in the State of Maharashtra. The applicant in this case i.e. the son of the petitioner had passed H.S.C. examination from the State of Maharashtra. He had passed S.S.C. examination from the school outside the State of Maharashtra i.e. from the State of Punjab and, therefore, his application came to be rejected on 24th June 1997 which is challenged before us.
6.Mr. Paranjape, the learned Advocate appearing on behalf of the petitioner contended that the Rule is unreasonable and also discriminative. According to him the petitioner, by virtue of serving in Armed Force, was transferred outside Maharashtra and, therefore, the condition t
