Children Of Armed Forces Cannot Be Discriminated Due To Place Of Posting Of Parents: SC

It is definitely in the fitness of things that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Vansh S/O Prakash Dolas Vs The Ministry of Education & The Ministry of Health & Family Welfare & Ors in exercise of its civil appellate jurisdiction arising out of SLP (C) No(s). 26179-26180 of 2023 and cited in Neutral Citation No.: 2024 INSC 235 that was pronounced on March 20, 2024 has minced just no words to hold in no uncertain terms that no discriminatory and arbitrary treatment can be meted out to the child of a soldier serving on the country’s frontiers. It was also pointed out by the Court that such a candidate cannot control the place of deployment of his father and this cannot be the choice for the staff. We ought to note that a Bench of top court comprising of Hon’ble Justices B R Gavai, Rajesh Bindal and Sandeep Mehta declared that the top court has no hesitation in providing that the candidates who are born in Maharashtra and whose parents are also domicile of the State and are employees of the Government of India or its undertaking, they would be entitled to a seat under the Maharashtra State quota irrespective of the place of posting of the parents because the place of deployment would not be under the control of the candidate or his parents.

It must be mentioned here that the Apex Court held that the Division Bench of Bombay High Court at Nagpur while rejecting the writ petition filed by the appellant, fell into manifest error in not considering the case of the appellant in the correct perspective. It further also declared the impugned judgment as unsustainable in facts as well as in law. Very rightly, it must be pointed out that the Bench said that cancelling the admission granted to the appellant against the Maharashtra State quota without giving opportunity to show cause is also illegal and arbitrary and deserves to be quashed and set aside. No denying it.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Sandeep Mehta for a Bench of the Apex Court comprising of Hon’ble Mr Justice BR Gavai, Hon’ble Mr Justice Rajesh Bindal and himself sets the ball in motion by first and foremost putting forth in para 2 that, “The appellant has approached this Court for assailing orders dated 5th September, 2023 and 26th October, 2023 passed by the Division Bench of the Bombay High Court Bench at Nagpur in Writ Petition No. 5141 of 2023 and Misc. Civil Application (Review) No. 980 of 2023 in Writ Petition No. 5141 of 2023, respectively.”

To put things in perspective, the Bench envisages in para 3 that, “The appellant is a domicile of the State of Maharashtra and his father is employed in the Border Security Force (BSF) as a Head Constable (General Duty) [HC(GD)]. Owing to the deployment of his father outside the State of Maharashtra, the appellant was compelled to complete his Secondary School Certificate (Standard X)(SSC) and Higher School Certificate (Standard XII)(HSC) education from a school outside the State of Maharashtra.”

While elaborating further, the Bench enunciates in para 4 that, “The appellant appeared in NEET-UG, 2023 craving admission in the undergraduate MBBS course against the State quota and upon being found meritorious, he was issued a provisional selection letter (CAP1) by the State Common Entrance Cell, Maharashtra on 4th August, 2023 and was allotted a seat in respondent No.6-College. The appellant completed the requisite formalities and paid an amount of Rs.13,500/-by way of admission fees. It may be noted that the appellant had applied for admission under the Other Backward Class/Non-Creamy Layer (OBC/NCL) category as being domicile of the State of Maharashtra.”

Quite strangely, the Bench lays bare in para 5 that, “However, without issuing notice and without providing any opportunity of being heard to the appellant, respondent No.6-College issued a letter/communication dated 9th August, 2023 cancelling the admission of the appellant.”

As it turned out, the Bench then observes in para 6 that, “The letter/communication cancelling the admission was challenged by the appellant by filing Writ Petition No. 5141 of 2023 before the Bombay High Court, Nagpur Bench raising a pertinent ground that the appellant was entitled to the exception as provided under clause 4.8 of the NEET UG-2023 Information Brochure (hereinafter referred to as ‘Information Brochure’) which pertains to the ‘Children of employees of Government of India or its Undertaking’ and that cancellation of his admission was totally illegal and arbitrary.”

As things stands, the Bench specifies in para 7 that, “The High Court, after considering the entirety of facts and circumstances dismissed the Writ Petition No. 5141 of 2023 vide order dated 5th September, 2023 holding that the appellant did not satisfy the requirements of clauses 4.8 and 9.4.4 of the Information Brochure. It was held that since the appellant did not select specified reservation i.e., in the category of Children of Defence personnel(DEF), while submitting the online application form, he was precluded from raising such a claim at a belated stage, as being impermissible in view of the rider contained in clause 9.4.4 of the Information Brochure.”

Needless to say, the Bench then states in para 8 that, “Being aggrieved and dissatisfied with the order dated 5th September, 2023, the appellant filed Misc. Civil Application (Review) No. 980 of 2023 which too was rejected vide order dated 26th October, 2023. These two orders are assailed in the present appeals.”

Simply put, the Bench mentions in para 14 that, “There is no dispute that the appellant and his parents are domicile of the State of Maharashtra. The appellant’s father is serving in the Border Security Force(BSF). Owing to deployment of his father outside the State of Maharashtra, the appellant passed his SSC and HSC exams from an institution outside the State of Maharashtra.”

Most significantly, the Bench mandates in para 20 propounding that, “On going through the extracted portion of the Division Bench judgment in the case of Archana Sudhakar Mandulkar(supra), we find that in an almost identical situation which prevails in the case at hand, the Division Bench read down the rule/guideline which provided that the ward of servicemen should have passed his/her 12th standard from an institution located in the State of Maharashtra. The Division Bench held that the servicemen or his ward desiring admission under the State quota could not have had any control over his posting which can be anywhere. The Division Bench held that the rule of denial of admission to a meritorious son/daughter of a serviceman who is domicile of Maharashtra only because of a fortuitous circumstance of his being not posted at the time of his ward studying in 12th standard within the State of Maharashtra cannot have any nexus to the object of the rule. Mere chance cannot be a valid disqualifying factor. Such rule will not only be arbitrary and unreasonable but will permit discrimination between two classes of servicemen of Maharashtra domicile actually posted at the material time (i) in Maharashtra and (ii) outside Maharashtra. This classification will be clearly invidious having no nexus whatsoever to the object sought to be achieved.”

No less significantly, the Bench observes in para 21 that, “In the extant admission process, a slight modification has been made in the guidelines inasmuch as, now as per clause 4.8.1 of Information Brochure, the children of employees of the Government of India or its Undertaking have been made eligible for admission even though they might have passed SSC and/or HSC or equivalent exam from a recognised institution situated outside the State of Maharashtra. However, while making such relaxation, a condition has been imposed that the employee of Government of India or its Undertaking being the parent of the candidate should have been transferred back to the State of Maharashtra and also have reported for duty and must be working as on the last date of the document verification at a place located in Maharashtra. We feel that this condition as imposed by the guidelines, creates a stipulation which would be impossible for the candidate or his parent to fulfill. It may be reiterated that the place of posting is not within the control of the employee or the candidate. Thus, the distinction drawn by the clause between two categories of employees in the Government of India services (i) those posted in Maharashtra and (ii) those posted outside Maharashtra has no nexus with the intent and purpose of the guidelines/rules and hence the same deserves to be read down to such extent. Thus, this Court has no hesitation in providing that the candidate(s) who are born in Maharashtra and whose parents are also domicile of the State of Maharashtra and are employees of the Government of India or its Undertaking, such candidate(s) would be entitled to a seat under the Maharashtra State quota irrespective of the place of posting of the parent(s) because the place of deployment would not be under the control of the candidate or his parents.”

Quite significantly, the Bench points out in para 22 that, “The Division Bench of Bombay High Court at Nagpur while rejecting the writ petition filed by the appellant, fell into manifest error in not considering case of the appellant in the correct perspective. For that reason, the impugned judgment is unsustainable in facts as well as in law. A fortiori, the letter/communication dated 9th August, 2023 issued by respondent No. 6 cancelling the admission granted to the appellant against the Maharashtra State quota in CAP1 without giving opportunity to show cause is also illegal and arbitrary and deserves to be quashed and set aside.”

It is worth noting that the Bench while referring to the judgment of the Apex Court in the case of S. Krishna Sradha v. State of Andhra Pradesh and Others (2017) 4 SCC 516 which examined the issue of wrongful denial of admission in a medical course notes in para 28 that, “In the light of the above judgment, it would neither be desirable nor justifiable to grant admission to the appellant in the on-going session of the MBBS(UG) course. However, considering the fact that the order cancelling the admission of the appellant herein was issued on 9th August, 2023 and the writ petition came to be filed before the High Court promptly i.e. on 10th August, 2023, without any delay whatsoever, the appellant is entitled to restoration of his seat in the first year of MBBS(UG) course in the same college in the next session, i.e., NEET UG-2024.”

Be it noted, the Bench notes in para 29 that, “We further direct that until a suitable rectification is made in the guidelines/rules, candidate(s) domicile of the State of Maharashtra having acquired SSC and/or HSC qualification from any recognized institution:-

(i) Whose parent(s) are domiciles of Maharashtra and employed in the Central Government or its Undertaking, defence services and/or in paramilitary forces viz. CRPF, BSF, etc. and;

(ii) Such parent(s) are posted at any place in the country as on the last date of document verification, shall be entitled for a seat in MBBS Course in the Maharashtra State quota.”

Further, the Bench directs in para 30 that, “It is further directed that the appellant shall be provided admission in the ‘OBC category domicile of State of Maharashtra child of person serving the Government of India’ in the first year of the MBBS(UG) course commencing from the year 2024 by creating an additional seat so as to ensure that there is no reduction in the quota of seats to the candidates who succeed in the NEET UG2024.”

As a corollary, the Bench then also directs in para 31 that, “The impugned orders are set aside. The appeals are accordingly allowed.”

Most forthrightly, the Bench mandates in para 32 directing that, “We also direct respondent No.6-College and respondent No.5- State of Maharashtra to pay compensation to the tune of Rs.1 lakh(Rs. 50,000/- each) to the appellant for the deprivation of one year and harassment on the account of illegal and arbitrary cancellation of his admission.”

Finally, the Bench then concludes by holding in para 33 that, “Pending application(s), if any, shall stand disposed of.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.