NISHANT PURIversusSTATE OF HIMACHAL PRADESH AND ORS.

                          NISHANT PURI                                          A
                               v.
              STATE OF HIMACHAL PRADESH AND ORS.

                           DECEMBER 2, 1998

        [K. VENKATASWAMI AND M. JAGANNADHA RAO, JJ.]                            B

       Medical admission-Himachal Pradesh University-prospectus-Clause
Ill-Eligibility of admission-Bona fide residents of Himachal Pradesfr-
Rt!quirement of passing two examinations from schools situated in Himachal
Pradeslr-Exemption to wards of serving Central Government Employees-            C
Appellant's mother a Himachal Pardesh State Government employee-At her
own request sent on deputation to work with Chandigarh Education
Department-Appel/ant's application for combined entrance test for MB.B.S.
admission-Rejection of-Writ-High Court held exemption under clause III              ~
was not available to appellant because his mother was only a State              D
Government employee working on deputation with the Central Government
and she cannot be considered to be a Central Government emp/oyee-
Appeal preferred before Supreme Court-Held, purpose behind clause (iii)
is that bona fide Himachali Students should be given preference over others-
Object is to protect those students whose parents were obliged to move out
of Himachal State on account of exigencies of service, by reason of which the   E
children also moved out of State-Mother of the Appellant went on deputation
of her own volition and not out of compulsion or exigencies of service-It
cannot be said that she is a Central Government employee as contemplated
in Clause (iii) of the eligibility clause-High Court was right in dismissing
the writ petition of the appellant.                                             F
      Meenakshi Malik v. University of Delhi and Ors., [1989) 3 SCC 112,
distinguished.

        Anand Madaan v. State of Haryana and Ors., 11995) 2 SCC 135, relied
OIL
                                                                                G
        CIVIL APPELLATE JURISDICTION ; Civil Appeal No. 6037 of
1998.

     From the Judgment and Order dated 4.9.97 of the Himachal Pradesh
High Court in C.W.P.No. 305of1997.                                              H
                                271
    272                      SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.

A         J.D. Jain, M.R. Vig and Balbir Singh Gupta for the Appellant.

         A.V. Palli, Atul Sharma and Ms. Rekha Palli for the Respondent in
    No.3.

          Himinder Lal for the Respondent in No. 4.
B
          Naresh K. Sharma for the Respondent No. I.

          The following Order of the Court was delivered :

          Special leave granted
c         Heard counsel for the parties.

          The short question that arises for consideration in this appeal is whether
    a State Government employee lent on deputation (at the request of the State
    Government employee on health ground) to a department of the Central
D   Government can be C!Jnsidered as a 'serving Central Government employee"
    within the meaning of the eligibility .clause as provided by Himachal Pradesh
    University in a combined prospectus for admission for M.B.B.S./B.D.S/B.A.M.S
    courses.

          The relevant clauses in the Prospectus read as follows :-
E
            "Definition of bona fide residents of Himachal Pradesh"

            A bona fide Himachali is a person who has permanent home in
            Himachal Pradesh and includes a person who has been residing in
            Himachal Pradesh for a period not less than 15 years or a person who
p           has permanent home in Himachal Pradesh but on account of his
            occupation he is living outside Himachal Pradesh."

            Eligibility -"

             (i) Candidates who have to compete for admission to Indira Gandhi
             Medical College. Shimla (M.B.B.S), Dr. Rajendra Prasad Govt. Medical
G
           · College Kangra, Himachal Pradesh Government Dental College and
             Hospital Shimla (B.D.S.). OR Free seats available in various Private
             Dental Colleges and Medical Colleges situated in Himachal Pradesh
             and Rajiv Gandhi Government Ayurvedic College, Paprola should
                                                                                       -
             have passed atleast two of the following examinations from the
H            recognised Schools or Colleges affiliated to ICSE/CBSE and HP Board
                         NISHANT PURI v. ST ATE                            273
       of School Education or equivalent Boards/University established by          A
       law in India.

       (a) Middle or Equivalent.

       (b) Matric or Equivalent.

       (c) 10+2 or Equivalent.                                                     B
       {ii) The bona fide Himachali students who are admitted to Navodaya
       Schools situated in Himachal Pradesh and who pass Matric or +2
       examination under the exchange programme from other Navodaya
       Schools in the Country shall also be eligible for admission to the          C
       above courses.

       (iii) The Wards of Defence personnels/serving Central Government
       employees who are bona fide Himachalis are also exempted from the
       condition of passing two classes from the State of Himachal Pradesh."

      Stated briefly, the relevant facts of the case are as under.
                                                                                   D

The appellant herein submitted his application for combined entrance test for
admission to the first year M.B.B.S. course for the year 1997-98. The third
respondent herein, after a perusal of the appellant's application informed him
that he was not eligible for submitting the application inasmuch as he had not     E
passed two out of three examination mentioned in the eligibility clause from
the school situated in Himachal Pradesh. In fact, the appellants mother, a
Himachal Pradesh State Government employee requested for sending her on
deputation to Chandigarh Union Territory on health ground. Accordingly, she
was sent on deputation to Chandigarh Education Department since 21.12.1988.
Alongwith his mother, the appellant also moved to Chandigarh and pursued           F
his studies there since 1988. Therefore, he could not satisfy the eligibility
requirement as mentioned above. Though the appellant initially claimed
exception under the category that he is the son of a defence personnel, that
was not pursued in view of the ·fact that his father was not a bona fide
Himachali. The alternative claim of the appellant was that his mother is a         G
Himachal Pradesh State Government employee and she having been sent on
 deputation to work at Chandigarh Education Department, must be treated as
a "serving Central Government employee". In that case exemption contemplated
 under Clause (iii) of the eligibility clause would come to his rescue. This was
 not accepted by the respondents. Though, on nferits he was entitled to get
 admission, he was denied admission for lack of eligibility for admission.         H
    274                     SUPREME COURT REPORTS [1998) SUPP. 3 S.C.R.

A   Aggrieved by the denial of admission to the first year M.B.B.S course, 1997,
    the appellant moved the High Court for appropriate writ to enable him to
    pursue the first year M.B.B.S. course.

           A Division Bench of the High Court rejected the contention put forward
    on behalf of the appellant that the mother of the appellant comes under the
B   category of serving Central Government employee as contemplated in Clause
    (iii) of eligibility clause. The High Court observed that 'she is only a State
    Government employee working on deputation with the Central Government
    and she cannot be considered to be a Central Government employee.'
    Accordingly, the High Court dismissed the writ petition.
c         Aggrieved by the order of the High Court, the present appeal by special
    leave has been filed.

          The learned Senior Counsel appearing for the appellant placing strong
    reliance on a judgment of this Court in Meenakshi Malik v. University of
D   Delhi & Ors.. [ 1989] 3 sec 112 submitted that in the light of the ratio laid
    down by this Court in the said judgment, the mother of the appellant must
    be deemed to be a serving Central Government employee satisfying the
    requirement of Clause (iii) of eligibility clause.

          On the other hand, learned counsel appearing for the State of Himachal
E   Pradesh, the Himachal Pradesh University and the private 4th respondent
    argued that having regard to the scheme of the Prospectus and the intention
    of the eligibility clause, the claim of the appellant that he is the son of a
    serving Central Government employee who is a bona fide Himachali cannot
    be accepted. The learned counsel also submitted that the judgment in
    Meenakshi Malik case (supra) must be confined to the facts of that case and
F   the principle laid down therein cannot be pressed into service in all cases
    irrespective of the facts of the case.

           We have considered the rival submissions. At the outset we have set
    out the relevant clauses in the Prospectus. The purpose behind the clause
G   relating to eligibility appears to be that bona fide Himachali students should
    be given preference over others. In achieving the above object care has been
    taken to protect those students whose parents were obliged to move out of
    Himachal State on account of exigencies of service, by reason of which the
    children also moved out of State. Ir1 the case on hand, it is an admitted fact
    that the mother of the appellant though a State Government employee went
H   on deputation on her own request on health ground to work as an employee
                          NJSHANT PURI v. ST ATE                           275
 of the Central government. In view of the fact that she has been allowed to       A
 continue on deputation for nearly I 0 years and is still maintaining her lien
 with the State government can it be said that she is a Central Government
 employee as contemplated in Clause (iii) of the eligibility clause. We are of
·the view that such an interpretation would go against the spirit of the
 eligibility clause provided in the Prospectus.
                                                                                   B
      The reliance placed on Meenakshi Malik case (supra) will not help the
appellant, as this Court, in Anant Madaan v. State of Haryana & Ors., [1995]
2 SCC 135 while distinguishing the Meenakshi Malik case observed as
follows:-

        "11. The appellants drew our attention to a decision of this Court in      C
        Meenakshi Malik v. University of Delhi where the father of the
        candidate was in government service. He was posted by the
        Government outside India. As the parents were compelled to go
        outside India, the children were also required to go with their parents.
        This Court considered this as a hard case. It held that the qualifying     D
        condition that the candidate should have received the last two years
        of education in a school in Delhi, should be relaxed in that case as
        the candidate was compelled to leave India for a foreign country by
        reason of the posting of her parents by the Government to such
        foreign country. The Court observed that there was no real choice in
        the matter for such a student and hence the rigour of the condition        E
        prescribing that the last two years of education should be received
        in Delhi should be relaxed in that case.

        12. None of the appellants who are before us are in a position similar
        to that of the appellant in the above case. In fact, the parents of
        Anant Madaan, Bharat B. Dua and Shalini Jain are in Haryana. In the        F
        case ofNandita Kalra the parents have voluntarily taken employment
        outside the State of Haryana. They are not in the same situation as
        the parents of Meenakshi Malik. Therefore, the relaxation which was
        given by this Court in the case of Meenakshi Malik cannot be given
        to any of the appellants before us."                                       G
                                                         (Emphasis supplied)

       We have already noticed that the mother of the appellant went on
 deputation of her own volition and not out of compulsion or exigencies of
 service.
       Therefore, the reliance placed by the learned Senior Counsel for the        H
    276                    SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.

A appellant on Meenakshi Malik case (supra) is of no avail. The High_Court also
    took the same view in rejecting the contention put forward on behalf of the
    appellant.

         In the circumstances, we do not find any merit in this appeal and the
  1-Jigh Court was right in dismissing the writ petition of the appellants The
B appeal fails and is dismissed. No costs.
    T.NA.                                                   Appeal dismissed.