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Article 16 in The Constitution Of India 1949
Article 16(4) in The Constitution Of India 1949
Article 14 in The Constitution Of India 1949
Rajan Baboo vs U.P. Public Service Commission ... on 18 January, 1996
Chandigarh Administration vs Jagjit Singh on 10 January, 1995

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Madras High Court
T.T. Saravanan, Minor, Rep. By His ... vs State Of Tamilnadu, Rep. By Its ... on 26 August, 2004
Equivalent citations: 2004 (5) CTC 704, (2004) 4 MLJ 283
Author: P Sridevan
Bench: P Sridevan



ORDER
 

 Prabha Sridevan, J. 

1. The writ petitioners pray that grandchildren of freedom fighters be given a seat in MBBS course under special category. Two of petitioners are the freedom fighters themselves and the great grand fathers of the candidates.

2. The prospectus for this year in so far as this clause is concerned reads as follows:

"2004-2005 "2004-2005

15. Seats reserved for special categories in Government Colleges Seats earmarked for the special categories will be allotted following the Horizontal Reservation.

SPECIAL CATEGORIES

(i) Seats reserved for children of freedom fighters No. of seats reserved in M.B.B.S - 3 A. The Candidates while applying under the Special Category mentioned above should furnish the following copies of documents along with the application.

a. Assistance Certificates/Freedom Fighter Pension Orders issued by the Central/State Government to the freedom fighter.

(OR) Jail Extract duly recommended by the District Committee for the Freedom Fighters.

b. Particulars of the Freedom Fighter in the book containing Freedom Fighters name published by Government of Tamil Nadu.

c. Proof that the candidate is the children of Freedom Fighter.

d. Tashildar Certificate to establish the relationship of the Freedom Fighter.

e. Birth Certificate to ascertain the parentage of the candidate.

f. Legal heir certificate of the Freedom Fighter."

The prospectus for the previous year as far as this clause is concerned reads as follows:

"2003-2004

15. Seats Reserved for Special Categories in Government Colleges:

Seats earmarked for the special categories will be allotted following the Horizontal Reservation.

GROUP-I(SPECIAL CATEGORIES)

(i) Seats reserved for children/grandchildren of Freedom Fighters No. of seats reserved in M.B.B.S - 3 A. Reservation is not applicable to adopted/foster children, Great Grand son/Great Grand daughter of the Freedom Fighter.

B. The Candidates while applying under the Special Category mentioned above should furnish the following copies of documents along with the application.

a. Assistance Certificates/Freedom Fighter Pension Orders issued by the Central/State Government to the freedom fighter.

(OR) Jail Extract duly recommended by the District Committee for the Freedom Fighters.

b. Particulars of the Freedom Fighter in the book containing Freedom Fighters name published by Government of Tamil Nadu.

c. Proof that the candidate is the grand children of Freedom Fighter.

d. Tashildar Certificate to establish the relationship of the Freedom Fighter.

e. Birth Certificate to ascertain the parentage of the candidate.

f. Legal heir certificate of the Freedom Fighter.

3. In M. AARTHI (Minor) v. THE STATE OF TAMIL NADU [2002 (4) CTC 449] the Five Judge Bench which considered the reservation for children of inter-caste marriages, the observation of the majority bench is as follows:

"Reservations of several kinds like widows, deserted women and any candidate, whose parent has suffered for the cause of development of Tamil and contributed towards the protection etc., are quite untenable. They do not have any constitutional or legal sanction. But we are not dwelling on that as they have not been questioned here and as the admissions to that category have already been completed. Other than the reservation in Tamil Nadu Act 45 of 1994, what is permissible is only for Physically Handicapped, Eminent Sportsmen, children of freedom fighters and Children of Ex-servicemen being horizontal reservation and not vertical. The State has to bear this in mind in future."

4. In the dissenting judgment by R. JAYASIMHA BABU, J. it was observed thus:

"43. Of the 15 special categories the only category with which we are concerned in the manner before us is `children born of inter-caste marriage'. The validity or otherwise of the other special categories, some of which, as noticed earlier, have been in existence for over 17 years, has not been debated before us. There is no pleading with reference thereto. The State was never called upon nor did it have any opportunity to justify the creation of the special category."

5. The learned Senior Counsel Mrs. Nalini Chidambaram and the other counsel for the petitioners would submit that in the previous year specifically "grandchildren" were included and therefore, the exclusion of grandchildren in the present prospectus could only be "a printers devil". No child of a freedom fighter could now apply for admission to medical college and therefore the clause in the prospectus must be read meaningfully. The learned Senior Counsel also submitted that in 2002 (4) CTC 449 (cited supra), the question was only with regard to the reservation for children of inter-caste marriages, and therefore the observation in the judgment cannot have the force of law and that this is made clear by the extract from the dissenting judgment.

6. It was also submitted that the golden rule of interpretation of 'reading down' the provision should be adopted and only then the reservation for the special category will have achieved its object and the following judgment was referred.

7. In (B.R. ENTERPRISES VS STATE OF U.P), it was observed as follows:

" First attempt should be made by the courts to uphold the charged provision and not to invalidate it merely because one of the possible interpretation leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted. For this, the courts have been endeavouring, sometimes to give restrictive or expansive meaning keeping in view the nature of legislation, may be beneficial, penal or fiscal etc. Cumulatively it is to subserve the object of the legislation. Old golden rule is of respecting the wisdom of legislature that they are aware of the law and would never have intended for an invalid legislation. This also keeps courts within their track and checks individual zeal of going wayward. Yet in spite of this, if the impugned legislation cannot be saved the courts shall not hesitate to strike it down. Similarly, for upholding any provision, if it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution. These interpretations spring out because of concern of the courts to salvage a legislation to achieve its objective..."

8. It was further submitted that the benefit that had been granted to the descendants of a freedom fighter cannot be withdrawn. It has been given in recognition of the sacrifices made by the freedom fighters at the time of the independence struggle and therefore, if one has to give meaning to the said intention children should be read as grandchildren. It was also contended that in Engineering Colleges seats are reserved for grandchildren of freedom fighters and there is no reason why it should not be extended to medical college admission also.

9. Mr. Jinasenan, appeared for the petitioner, seeking inclusion for the great grandchild, submitted that the word 'children' should only be understood to mean 'descendants' of freedom fighters and the rationale behind the reservation for children/descendants of freedom fighters, is the recognition of the gratitude the country owes to them.

10. Mr. Muthukumarasamy, learned Additional Advocate General would submit that the prospectus lays down the conditions for admission and accepting the same the petitioner had applied and it now not open to the petitioner to attack the prospectus. For this purpose reliance was placed on S. TANUJA V. DIRECTOR OF MEDICAL EDUCATION, MADRAS (1985 WLR 354) wherein it was held as follows:

"The prescriptions and the procedure were there in the prospectus itself. Knowing fully well that there are such prescriptions and procedure the petitioner applied for admission. After having acquiesced in the prescriptions and procedure and after having gone through the process of selection as per the same and now not having come out successful, it is not permissible for the petitioner to challenge the constitutional vires of the said prescriptions and procedure."

11. Reliance was also placed on the judgment in W.P. No. 16841 of 2004 (batch) dated 02-08-2004. Not having challenged the prospectus it is not open to the petitioners to seek a mandamus. It was further submitted that the fact that in the past, grandchildren were admitted under this category cannot create a legal right and for this purpose reliance was placed on R.K. KHANDELWAL V. STATE OF UTTAR PRADESH and in that case the Supreme Court has held -

"There is no substance in this contention and in any case the appellant cannot make a grievance of a change in the practice for admission to the particular course. Admittedly there was no rule at any time requiring that an applicant seeking admission to the M.D. Course in Paediatrics had to pass his D.C.H. Examination. All that is alleged is that such a practice was recognised over may years or at least, that such was the understanding of all concerned. ......But apart from that, discontinuance of a mere practice cannot sustain a charge of injury to legal rights. The practice had not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination."

12. It was further submitted that the fact that the reservation in Engineering colleges was extended to grandchildren cannot be a ground for issuing a mandamus as regards medical college admission. In CHANDIGARH ADMINISTRATION V. JAGJIT SINGH , it was held as follows:

"We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent - authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent - authority to repeat the illegality or to pass another unwarranted order. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent - authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent - authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law.........Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world."

13. It was submitted that while considering the reasonableness of a classification the Court must also consider the object of such classification. Children of freedom fighters are included in the special reservation category in view of the unsettled life that a child of a freedom fighter might have faced. The grandchild cannot make a similar plea. It was open to the Government to restrict the criteria for eligibility on a reasonable basis. For that purpose reliance was placed on DEEPAK SIBAL V. PUNJAB UNIVERSITY . The relevant paragraph is extracted hereunder:

"In considering the reasonableness of classification from the point of view of Article 14 of the Constitution, the Court has also to consider the objective for such classification. If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable.

21. The next contention of the respondents is that the University, being an educational institution, is entitled to identify the sources for admission to the evening classes and that has been done by the University by the impugned rule and that cannot be challenged as violative of Article 14 of the Constitution. In support of this contention, much reliance has been placed on behalf of the respondents on a decision of this Court in Chitra Ghosh Vs. Union of India, relating to reservation of seats in a medical college. In upholding such reservation of seats it has been observed by this Court as follows (at page 39 of AIR):-

"It is the Central Government which bears the financial burden of running the medical college. It is for it to lay down the criteria for eligibility. From the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made."

14. The reservation of seats for children of freedom fighter comes under a special category. These are the words of caution in Indra Sawhney V. Union of India with regard to creation of special categories:

"But at the same time, one thing is clear. It is in a very exceptional situation given "and not for all sundry reasons" that any further reservations of whatever kind, should be provided under clause (1). In such cases, the state has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress the specific situation. The very presence of clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under clause (4) as well as under clause(1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do."

15. In (cited supra), it was held while referring to the above observations, "Though the said observations were made with reference to clauses (1) and (4) of Article 16, the same apply with equal force to clauses (1) and (4) of Article 15 as well."

16. In AJITH SINGH (II) V. STATE OF PUNJAB , the Supreme Court held while dealing with the question whether under Article 16(4) and 16(4A), the State was conferred with a power coupled with duty held that, "....the view in Jagannathan and Kuldeep Singh's case that a m`andamus can be issued either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and therefore, these two judgments cannot be said to be laying down the correct law."

17. It is difficult to accept that the exclusion of grandchildren must only be by inadvertance. It is true that children of freedom fighters may not apply for admission in the medical college because of their age. But the extract from the prospectus of the this year and last year would show that this year not only under the caption "Seat Reserved" is the word "grandchildren" removed. It clearly says that alongwith the application there should be documentary proof that the candidate "is the children of the freedom fighter". Last year, the candidate was required to show that he/she is "the grandchildren of the freedom fighter". Appendix I makes it clear that the special category is, "children of freedom fighters". Appendix I of last year's prospectus read "grandchildren of freedom fighters". Therefore, the respondent intended to exclude the grandchildren. To the question whether any thought was applied to the fact that no child of a freedom fighter would now apply for admission, the answer may be in the negative. But on that score, a mandamus cannot be granted. Several cases have dealt with the issue of Special Reservation Category and in those decisions where this category included a quota for freedom fighters, it was for their children, dependants, actual dependants or wards. For example {(i) ;

{(ii) SWATHI GUPTA V. STATE OF U.P. [1995 {(2)SCC 560].

Dependants {(iii) RADHAKRISHNA MISHRA V. STATE OF U.P. ;

{(iv) RAJAN BABU V. U.P. PUBLIC SERVICE COMMISSION ;

Actual Dependants {(v) ANIL KUMAR GUPTA V. STATE OF U.P.

Wards {(vi) PARSHOTAM SINGH V. STATE OF PUNJAB

18. The object of creating reservation for children of freedom fighters is in acknowlegement of the struggle faced by the children/ dependants of freedom fighters in competing equally with others. The freedom fighters might have been killed, imprisoned, been impoverished and because of his/her participation in the struggle, the children may have been denied the attention and care given to other children. This is well described in M. SATYANARAYANA V. STATE OF KARNATAKA wherein it was held, "Reservations in favour of sons of political sufferers are considered to be belonging to a special category. There is rationale behind it. Those who are political sufferers undergo certain disadvantages and pass on such disadvantages to their children. They will be in a worse position than the children of those who are not political sufferers for the purpose of taking adequate education, attention, etc. because their parents might have languished in any prison or might have been deprived of property. Looked at from that point of view, political sufferer should be an identifiable person who could be recognised as such on certain rational basis. It is, therefore, manifest that a person to be a political sufferer must have suffered in any one of the five ways stated in sub-clauses (i) to (v) of clause (b)."

These reasons cannot apply to grandchildren or great grandchildren. Therefore, if the State takes a decision not to extend the benefit under the special category to "grand children and other descendants" it cannot be said to be unreasonable. The fact that no applicant falls under the category of children cannot advance the petitioner's case. As a consequence, the State is under no obligation to widen the net nor can a mandamus be issued. As regards the word "children" in the prospectus, it is plain and clear and therefore, must be understood to mean only children. In different circumstances, children may be construed to mean grandchildren. But in this case, when the word "grandchildren" in the previous prospectus has been consciously removed, we cannot give an inclusive meaning to the word.

19. In S.S. BOLA AND OTHERS V. B.D. SARDANA AND OTHERS it was held as follows:

"183. The general rule of interpretation is that the language employed is primarily the determining factor to find out the intention of the legislature. Gajendragadkar J., as he then was, in the case of Kanailal Sur v. Paramnidhi Sadhukhan , had observed that "the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself". In the case of, Robert Wigram Crawford v. Richard Spooner, (1846) 4 MIA 179 (PC) p.187, Lord Brougham had stated thus, " If the legislature did intend that which it has not expressed clearly; much more, if the legislature intended something very different; if the legislature intended pretty nearly the opposite of what is said, it is not for judges to invent something which they do not meet within the words of the text." Thus when the plain meaning of the words used in a statute indicate a particular state of affairs the Courts are not required to get themselves busy with the "supposed intention" or with "the policy underlying the statute" or to refer the objects and reasons which was accompanied the Bill while introducing the same on the floor of the legislation."

20. The prospectus leaves no one in any doubt that grandchildren were not intended to be included in the Special Category Reservation, the petitioners knew this when they applied for admission.

21. The fact that Engineering Colleges provide for reservation for grand children cannot be a reason for Medical College to follow suit.

22. Even if there was a practice to reserve seats for grandchildren, it cannot be said that there was a rule to that effect. The Special Category Reservations are more in the nature of benefits given to certain identifiable groups/persons. There is no constitutional obligation as in the case of reservation under Article 15(4) and Article 16(4).

23. The object of creating a special category of children/ward/dependent of freedom fighters has been set out in the decision referred to above. It cannot apply to grandchildren or great grand-children. The consideration that weigh with Courts while dealing with freedom fighter's pension also cannot apply here.

24. It is seen that in the previous year's prospectus where the "grandchildren" are included in the special category it is specifically stated that the adopted or foster children or a great grandchild is not included. Therefore, it has never been the intention or practice of the respondent to give to the great grandchildren. Therefore, the certiorari as prayed for in these petitions cannot be granted.

25. There is no constitutional illegality or invalidity in the prospectus and no constitutional obligation to reserve seats for grandchildren or great grandchildren of freedom fighters. So, the relief sought for cannot be granted. The writ petitions are accordingly dismissed. No costs. Consequently, connected W.P.M.P.s are dismissed.