Miss Vaidhehi Subhash Natu Vs. State of Maharashtra and Others - Court Judgment

Excerpt:
constitution - admission - rule 3 (b) framed by maharashtra government for admission to medical colleges and articles 14, 15 and 226 of constitution of india - rule 3 for selection to medical course challenged - petitioner passed s.s.c. examination equivalent to c.b.s.e - as petitioner's father was working abroad she was not entitled to even apply for admission as she had not passed s.s.c. exams from maharashtra as per rule 3 - petitioner alleged that only medical council of india empowered to frame rules and said rule is discriminatory - petitioner's case cannot be treated at par with children of government employees - relaxation made in respect of children of government employees as they have no choice in matter of their transfers - petitioner's father secured employment abroad voluntarily of his own choice - rule 3 is not discriminatory - held, petitioner not entitled for admission. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time of consideration of the charge, it si open to the accused to bring to the notice of the court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. even if charge is framed at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. even if charge is frame d at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. it is not a requirement und4r section 3 of the atrocities act that the complainant should disclose the caste of the accused in the complaint. in other words, if there is no mention of the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the act or for quashing such complaint - state of madhya pradesh, reported in [1955]1scr1215 the apex court had held that the preference in admissions on the basis of residence as well as the institutional preference is permissible so long as there is no total reservation on the basis of residential or institutional preference. or equivalent examination from maharashtra is relaxed so far as the children of employees of central government, state government or the government of india undertakings are concerned, while the children of parents who are employed in private service, like the petitioner, have to comply with the condition and pass the s. anturkar further contended that the object of the rules is to select best students and the discrimination made between the government employees and the private employees does not serve the object of selection of best students. the said submission is also without any substance because the object of selection of best students can not be said to have been deviated from simply because the relaxation of condition is made in favour of the children of the government employees as they have got no choice in the matter, it cannot, therefore, be said that the rule about merit is given go by in case of children of government employees.orders.s. parkar j.1. heard mr. anturkar for the petitioner and mrs. gokhale, a.g.p. for the respondent -state. by this writ petition under article 226 of the constitution the petitioner has challenged rule 3(b) of the rules for selection to m.b.b.s. and b.d.s. course for 1997-98. the said rule provides as follows:'(b) the applicant must have passed the s.s.c. or equivalent examinationfrom maharashtra.provided that for a child of any employee of central government or government of india undertaking transferred to maharashtra state and joined before the last date prescribed for submission of application and is in the service in jurisdiction of respective region, this condition would stand relaxed.'2. the petitioner has passed her h.s.c. examination from ruparel college in bombay, maharashtra. the petitioner obtained 92.35 per cent marks in physics, chemistry and biology group. the petitioner's father was working in baharain in arabian gulf where the petitioner was staying with him and, therefore, the petitioner has done her s.s.c. equivalent examination viz. c.b.s.e. viz. central board of secondary education from indian school in i.s.a. town, bahrain, she passed her s.s.c. equivalent examination in the year 1995 securing 92.8 per cent marks. according to the petitioner ultimately with the aforesaid percentage of marks she was qualified to get admission for the medical course in the state of maharashtra. however, as per the aforesaid rule no. 3(b) which is framed by the government of maharashtra for the eligibility of applicants for admission in the medical course, she cannot even apply for the said course although she was educationally qualified and had secured high percentage of marks which would enable her to obtain admission for the said course in the state of maharashtra. the petitioner has, therefore, challenged the above rule on two grounds viz. that it is the medical council of india which is empowered to frame rules in that behalf and the rules framed by the medical council of india prescribe only qualification that the candidate must have passed h.s.c. examination. the second challenge is on the ground that the impugned rule makes discrimination between the children whose parents are employed in the private service and the children whose parents are employed with the central government or the state government.3. so far as the first contention is concerned that the government cannot make rules for the purpose of admission to the medical course has no substance. the medical council of india has prescribed the rule that in order to get admission to the medical course the candidate must have passed h.s.c. examination. that rule is not departed from by the government. all that the government has laid down is that the applicant must have passed apart from the h.s.c. examination, the s.s.c. examination also from any school in the state of maharashtra. the said power of the government to lay down, what is known as institutional preference, is permissible so long as there is no total reservation on the basis of residential or institutional preference. as far back as in the year 1955 in the case of d.p. joshi v. state of madhya pradesh, reported in : [1955]1scr1215 the apex court had held that the preference in admissions on the basis of residence as well as the institutional preference is permissible so long as there is no total reservation on the basis of residential or institutional preference. the said principle was reiterated by the supreme court in the case of jagadish saran (dr.) v. union of india, reported in : [1980]2scr831 . subsequently, in the case of pradeep jain (dr.) v. union of india, reported in : (1984)iillj481sc the supreme court held that the reservation to the extent of 70 per cent on the basis of residence and institutional preference was permissible leaving 30 per cent of the seats to be made available on all india basis. thereafter in the case of dinesh kumar (dr.) v. motilal nehru medical college, reported in : [1986]3scr345 , the apex court increased this percentage of reservation on the basis of residence and institutional preference to 85 per cent leaving only 15 per cent seats to be filled in on all india basis. in this case the state government has not made any rule as regards qualification for admission to the medical course but has only laid down the rules of preference in admissions on the basis of institution, which is as per the above citations, permitted. the first contention of mr. anturkar, therefore, has no merit.4. so far as the second contention canvassed by mr. anturkar is concerned the same is also devoid of merit. according to mr. anturkar the distinction made between the children of the employees of the government and the children of parents who are employed in private service is not based on intelligible differentia and smacks of discrimination. he points out that by proviso to rule 3(b) the rule that every applicant for admission to the medical course must have passed s.s.c. or equivalent examination from maharashtra is relaxed so far as the children of employees of central government, state government or the government of india undertakings are concerned, while the children of parents who are employed in private service, like the petitioner, have to comply with the condition and pass the s.c.c. examination also from the state of maharashtra. he points out that the petitioner had to do her s.s.c. from bahrain because her father was employed in a private service at bahrain and, therefore, she could not pass her s.c.c. from the state of maharashtra and, therefore, the said condition ought to be relaxed in her case also as it is done in the case of children of employees of central and state governments.5. we do not agree with the submission made by mr. anturkar. the case of the petitioner cannot be placed or treated on par with that of the children of central government and state government employees. so far as the employees of the central government and state government are concerned, their services are transferrable and they have no choice and no option in the matter. the relaxation of the said condition is made in respect of the children of the government employees because there is no choice in the matter for such a student and the condition of passing s.c.c. examination from the state of maharashtra would have worked hardship on the candidate. the father of the petitioner had voluntarily taken employment outside not only of state of maharashtra but outside india. but so far as the government employees are concerned, they have no choice or say in the matter of their transfers and because of the exigency of their service they have to accept their posting wherever they are sent. in that view of the matter the case of the petitioner cannot be put on par with the government employees. the supreme court had carved out exception in the case of meenakshi malik v. university of delhi, : [1989]2scr858 in respect of government employee on the ground that he was compelled to leave india by reason of the posting by the government and there was no real choice in the matter. on the other hand the father of the petitioner in this case had secured employment abroad voluntarily, of his own choice.6. mr. anturkar further contended that the object of the rules is to select best students and the discrimination made between the government employees and the private employees does not serve the object of selection of best students. the said submission is also without any substance because the object of selection of best students can not be said to have been deviated from simply because the relaxation of condition is made in favour of the children of the government employees as they have got no choice in the matter, it cannot, therefore, be said that the rule about merit is given go by in case of children of government employees.7. we, therefore, find no substance in the petition and hence the same is dismissed, rule is discharged, there will be, however, no order as to costs.8. petition dismissed.

Judgment:
ORDER

S.S. Parkar J.

1. Heard Mr. Anturkar for the petitioner and Mrs. Gokhale, A.G.P. for the respondent -State. By this writ petition under Article 226 of the Constitution the petitioner has challenged Rule 3(b) of the Rules for selection to M.B.B.S. and B.D.S. Course for 1997-98. The said Rule provides as follows:

'(b) The applicant must have passed the S.S.C. or equivalent examinationfrom Maharashtra.

Provided that for a child of any employee of Central Government or Government of India undertaking transferred to Maharashtra State and joined before the last date prescribed for submission of application and is in the service in jurisdiction of respective region, this condition would stand relaxed.'

2. The petitioner has passed her H.S.C. examination from Ruparel College in Bombay, Maharashtra. The petitioner obtained 92.35 per cent marks in Physics, Chemistry and Biology Group. The petitioner's father was working in Baharain in Arabian Gulf where the petitioner was staying with him and, therefore, the petitioner has done her S.S.C. equivalent examination viz. C.B.S.E. viz. Central Board of Secondary Education from Indian School in I.S.A. Town, Bahrain, she passed her S.S.C. equivalent examination in the year 1995 securing 92.8 per cent marks. According to the petitioner ultimately with the aforesaid percentage of marks she was qualified to get admission for the medical course in the State of Maharashtra. However, as per the aforesaid Rule No. 3(b) which is framed by the Government of Maharashtra for the eligibility of applicants for admission in the Medical course, she cannot even apply for the said course although she was educationally qualified and had secured high percentage of marks which would enable her to obtain admission for the said course in the State of Maharashtra. The petitioner has, therefore, challenged the above rule on two grounds viz. that it is the Medical Council of India which is empowered to frame Rules in that behalf and the Rules framed by the Medical Council of India prescribe only qualification that the candidate must have passed H.S.C. Examination. The second challenge is on the ground that the impugned Rule makes discrimination between the children whose parents are employed in the private service and the children whose parents are employed with the Central Government or the State Government.

3. So far as the first contention is concerned that the Government cannot make Rules for the purpose of admission to the Medical course has no substance. The Medical Council of India has prescribed the rule that in order to get admission to the Medical course the candidate must have passed H.S.C. examination. That rule is not departed from by the Government. All that the Government has laid down is that the applicant must have passed apart from the H.S.C. examination, the S.S.C. examination also from any school in the State of Maharashtra. The said power of the Government to lay down, what is known as institutional preference, is permissible so long as there is no total reservation on the basis of residential or institutional preference. As far back as in the year 1955 in the case of D.P. Joshi v. State of Madhya Pradesh, reported in : [1955]1SCR1215 the Apex Court had held that the preference in admissions on the basis of residence as well as the institutional preference is permissible so long as there is no total reservation on the basis of residential or institutional preference. The said principle was reiterated by the Supreme Court in the case of Jagadish Saran (Dr.) v. Union of India, reported in : [1980]2SCR831 . Subsequently, in the case of Pradeep Jain (Dr.) v. Union of India, reported in : (1984)IILLJ481SC the Supreme Court held that the reservation to the extent of 70 per cent on the basis of residence and institutional preference was permissible leaving 30 per cent of the seats to be made available on all India basis. Thereafter in the case of Dinesh Kumar (Dr.) v. Motilal Nehru Medical College, reported in : [1986]3SCR345 , the Apex Court increased this percentage of reservation on the basis of residence and institutional preference to 85 per cent leaving only 15 per cent seats to be filled in on all India basis. In this case the State Government has not made any rule as regards qualification for admission to the Medical course but has only laid down the rules of preference in admissions on the basis of institution, which is as per the above citations, permitted. The first contention of Mr. Anturkar, therefore, has no merit.

4. So far as the second contention canvassed by Mr. Anturkar is concerned the same is also devoid of merit. According to Mr. Anturkar the distinction made between the children of the employees of the Government and the children of parents who are employed in private service is not based on intelligible differentia and smacks of discrimination. He points out that by proviso to Rule 3(b) the rule that every applicant for admission to the Medical course must have passed S.S.C. or equivalent examination from Maharashtra is relaxed so far as the children of employees of Central Government, State Government or the Government of India undertakings are concerned, while the children of parents who are employed in private service, like the petitioner, have to comply with the condition and pass the S.C.C. examination also from the State of Maharashtra. He points out that the petitioner had to do her S.S.C. from Bahrain because her father was employed in a private service at Bahrain and, therefore, she could not pass her S.C.C. from the State of Maharashtra and, therefore, the said condition ought to be relaxed in her case also as it is done in the case of children of employees of Central and State Governments.

5. We do not agree with the submission made by Mr. Anturkar. The case of the petitioner cannot be placed or treated on par with that of the children of Central Government and State Government employees. So far as the employees of the Central Government and State Government are concerned, their services are transferrable and they have no choice and no option in the matter. The relaxation of the said condition is made in respect of the children of the Government employees because there is no choice in the matter for such a student and the condition of passing S.C.C. examination from the State of Maharashtra would have worked hardship on the candidate. The father of the petitioner had voluntarily taken employment outside not only of State of Maharashtra but outside India. But so far as the Government employees are concerned, they have no choice or say in the matter of their transfers and because of the exigency of their service they have to accept their posting wherever they are sent. In that view of the matter the case of the petitioner cannot be put on par with the Government employees. The Supreme Court had carved out exception in the case of Meenakshi Malik v. University of Delhi, : [1989]2SCR858 in respect of Government employee on the ground that he was compelled to leave India by reason of the posting by the Government and there was no real choice in the matter. On the other hand the father of the petitioner in this case had secured employment abroad voluntarily, of his own choice.

6. Mr. Anturkar further contended that the object of the Rules is to select best students and the discrimination made between the Government employees and the private employees does not serve the object of selection of best students. The said submission is also without any substance because the object of selection of best students can not be said to have been deviated from simply because the relaxation of condition is made in favour of the children of the Government employees as they have got no choice in the matter, it cannot, therefore, be said that the rule about merit is given go by in case of children of Government employees.

7. We, therefore, find no substance in the petition and hence the same is dismissed, Rule is discharged, There will be, however, no order as to costs.

8. Petition dismissed.