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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHASKAR BHATTACHARYA, J.B. PARDIWALA, JJ.
VISHAKHA D/O MAHENDRA PATEL
Versus
STATE OF GUJARAT & ANR
LETTERS PATENT APPEAL No. 921 of 2012 In SPECIAL CIVIL APPLICATION No. 8925 of 2012 With CIVIL APPLICATION No. 7910 of 2012 AND CIVIL APPLICATION No. 9765 of 2012 AND CIVIL APPLICATION No. 8486 of 2012 In LETTERS PATENT APPEAL No. 921 of 2012 WITH LETTERS PATENT APPEAL No. 1094 of 2012 In SPECIAL CIVIL APPLICATION No. 9917 of 2012 With CIVIL APPLICATION No. 9850 of 2012 In LETTERS PATENT APPEAL No. 1094 of 2012
15/09/2012
Constitution of India, 1950 - Article 15 - Admission - The native place of the father of the petitioner is the village situated in the State of Gujarat - The father of the petitioner lastly studied at from which he was selected to National Defence Academy in the Army as an officer - Since the father of the petitioner was working in the Army, he was posted at different places including border areas and thus, the petitioner studied at different schools staying with her father while he was working at different places with the Army - Contentions by appellants that Rule violative of Article 15 because it does not extend benefit of exemption to children of persons origin of Gujarat serving in Armed Forces on par with those of I.A.S. officers etc - Held, benefit given to the children of All India Services Officers viz. Indian Administrative Service, Indian Police Service and Indian Forest Service alloted to the Gujarat State and serving outside the Gujarat State on deputation, and the children of Gujarat Government Employees who have been posted outside the Gujarat State for the Administrative reasons should be also applicable to the children of persons doing military services for the Government of India, the appellants, by making this submission, are really asking this Court to legislate. In an application under Article 226 of the Constitution of India, it is now well-settled law that merely because a particular legislation would be more wiser or more appropriate, for that reason, the writ-Court, sitting in a jurisdiction under Article 226 of the Constitution of India cannot declare a particular provision which is otherwise valid as an invalid piece of legislation. It is for the State legislature to legislate and that power cannot be usurped by the High Court sitting in a jurisdiction under Article 226 of the Constitution of India. In our opinion, in considering whether a particular legislation is invalid, the writ-Court should follow the principles as laid down by the Supreme Court in the case of State of Madhya Pradesh v. Rakesh Kohli and another, (2012) 6 SCC 312 wherein the Apex Court considered various earlier decisions of the said court laying down the circumstances in which a writ-court can declare a statutory provision as ultra vires in the following manner - Appeal dismissed.
BHASKAR BHATTACHARYA, J.
1. These two Letters Patent Appeals were heard together as the points involved in these two appeals are similar.
2. LPA No. 921 of 2012 is at the instance of an unsuccessful writ-petitioner and is directed against an order dated 6th July 2012 passed by a learned Single Judge of this Court in Special Civil Application No. 8925 of 2012 by which His Lordship dismissed the writ-application filed by the petitioner wherein the petitioner prayed for a direction upon the respondent No.1 to give admission to the petitioner in MBBS course for the year 2012-13 on merits and to quash the action of the respondents in denying admission to the petitioner.
2.1 In the other appeal being LPA No. 1094 of 2012, the writ-petitioner is aggrieved by the order dated 11th September 2012 by which the learned Single Judge issued rule nisi making it returnable on 11th September 2012 but no interim relief was granted. In the said writ-application, out of which the present LPA arises, the petitioner prayed for the following relief:
“A. This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ, order or directions commanding the respondents to construe, interpret, and read the provisions of Rule 5(1) and (2) of Rules for Admission to M.B.B.S. / B.D.S. / B.P.T. / B.A.M.S. / B.H.M.S. / B.Sc. Nursing / B.P.O. / B.O. / B.O.T. / B. Nat. / B.A.S.L.P courses in Government, Municipal, Grant in Aid and Self Financed colleges or Institutions in the State of Gujarat after H.S.C.E (12th) Science Stream (B/AB Group) and GUJCET 2012-13 as the petitioner is eligible for admission in the course of M.B.B.S. / B.D.S. / B.P.T. / B.A.M.S. / B.H.M.S. / B.Sc. Nursing / B.P.O. / B.O. / B.O.T. / B. Nat. / B.A.S.L.P in the institutions in the State of Gujarat and to include the name of the petitioner in the merit list prepared for the purpose of admission in the course of M.B.B.S. / B.D.S. / B.P.T. / B.A.M.S. / B.H.M.S. / B.Sc. Nursing / B.P.O. / B.O. / B.O.T. / B. Nat. / B.A.S.L.P in the institutions in the State of Gujarat.
In the alternative
B. This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondent to suitably amend the language of Rule 5(1) and (2) of the Rules for Admission to M.B.B.S. / B.D.S. / B.P.T. / B.A.M.S. / B.H.M.S. / B.Sc. Nursing / B.P.O. / B.O. / B.O.T. / B. Nat. / B.A.S.L.P courses in Government, Municipal, Grand In Aid and Self Financed Colleges or Institutions in the State of Gujarat after H.S.C.E (12th) Science Stream (B/AB group) and GUJJECT 2012-13 so as to include the children of officers of Army, Navy and Air Force of Gujarat original as eligible for admission in the institutions situated in Gujarat at par with the children of officers of All India Services and Gujarat Government Employees.
C. This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ order or direction commanding the respondents to accept the form of admission of the petitioner for admission in M.B.B.S. / B.D.S. / B.P.T. / B.A.M.S. / B.H.M.S. / B.Sc. Nursing / B.P.O. / B.O. / B.O.T. / B. Nat. / B.A.S.L.P courses.
In Alternative
D. This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ, order or direction striking down the provisions of Rule 5(1) and (2) of the Rules for Admission to M.B.B.S. / B.D.S. / B.P.T. / B.A.M.S. / B.H.M.S. / B.Sc. Nursing / B.P.O. / B.O. / B.O.T. / B. Nat. / B.A.S.L.P courses in Government, Municipal, Grant In Aid and Self Finances Colleges or Institutions in the State of Gujarat after H.S.C.E. (12th) Science Stream (B /AB Group) and GUJCET 2012-13 to the extent it excludes the children of Army, Navy and Air force of Gujarat origin as eligible for admission in the institutions situated in Gujarat and not treating them at par wi
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