Chandigarh Administration and Anr. Etc. Etc. v. Manpreet Singh and Ors. Etc. Etc.

In the Union Territory of Chandigarh, 5% of the seats are reserved in favour of sons/daughters/spouses of Military/Para-Military personnel. Orders in this behalf are issued by the Administration in its memo dated 19th May, 1982 which were later modified in memo dated 6.9.1990. In accordance with the said orders, Punjab Engineering College (a College run by the Chandigarh Administration and affiliated to Punjab University)· reserved 15 seats in favour of sons/daughters/spouses of Military/Para­ Military Personnel. The College published a prospectus for the sessio1) 1991-92. It contains inter a/ia the rules governing the admission of st\J- 326 SUPREME COURT REPORTS · (1991) SUPP. 2 S.C.R. A dents to the said college. So far as the reservation in favour of children and spouses of Military/Para-Military Personnel is concerned, the rule, (printed at pages 23 and 24 of the Prospectus) reads as follows: "Sons/Daughters/Spouses of Military /Para-military Personnel etc. : B The Admission of the candidates against the reserved seats under this category will be made on the basis of merit list prepared according to the priorities given below in the descending order:- I. Sons/Daughters/Spouses of defence personnel who are awardees of gallantry decorations of Paramvir/Mahavir/Vir Chakra in per- son or posthumously. OR Sons/daughter$/spouses of defence personnel and para-military perso~el like CRPF, BSF etc. who are killed or are totally incapacitated in action while in service and were wholly de- pendent on them. 2. Sons/daughters/spouses of defence personnel and para-military personnel like CRPF/BSF etc. who die while in service and-were wholly dependent on them; 3. Sons/daughters/spouses of defence personnel and para-military . personnel like CRPF/BSF incapacitated while in service and were wholly dependent on them; 4. Sons/daughters/spouses of ex-servicemen (military and para-military personnel like CRPF/BSF who are wholly dependent on them; 5. Sons/daughters/spouses of serving defence personnel and para- military personnel like CRPF/BSF who are wholly dependent on them: The candidates claiming admissions under the category I above are required to submit the photo-copy of citation for the gallantry award, failing which the npplication will not be considered in this category. The candidates claiming admission under category I are required to submit a certificate from the respective Headquarters regarding death/total · mcap~citation in action while in service. The candidates claiming admission under category 2 and 3 are re­ quired to submit a certificate from the respective Headquarters regarding death/total incapacitatiori·while in service. CHANDIGARH ADMINISTRATION v. MANPREETSINGH 3Zl The.candidates claiming admission under category 4 are required to A. submit discharge certificate from sevice and certificate of dependence from the District Magistrate of the district concerned. The candidates claiming admission under category 5 are required to submit the certificate of dependence from the unit in which parent/spouse is serving. The candidates who apply for admission against this ·category will also be considered for admission against the seats allocated for Chandigarh/ General Pool to which they may belong as per their merit." A perusal of the rule shows that the five categories are mentioned in C the order ofpriority in the descending order.There is no allocation of seats as between these five categories. It means that in' the first instance. all the qualified and eligible candidates falling in category 1 will be given admission and if any seats are left unfilled, qualified candidates' falling in category 2 will be admitted. If there are any seats still left unfilled, qualified candidates falling in category 3 will be given admission and so D on. In a given year, it may well happen that all the available seats re- 1 served for children/spouses of defence personnel are taken away by the candidates in th.e first or first and second categories. As a matter of fact, for the year 1990-91, only 6 candidates belonging to sub-category 4 out of 90 candidates could be admitted and not the others and category 5 '\vent Unprovided altogether. It is stated that all candidates obtaining the speci- E fied minimum marks in the common entrance test were treated as quali- fied for being considered for admission. S.L.P. 16066191: The first respondent in the S.L.P. applied for ad­ mission to Punjab Engineering College under this quota. He appeared in the common Entrance Test along with other applicants. The College Au- F thorities considered his case placing him in category 4 since his father was an Ex-serviceman. He could not, however, be given the admission be­ cause the 15 seats reserved for children and spouses of Military/Para­ Military Personnel in this College were allocated in the following manner: a. There were three candidates falling in category 1 (i.e., children G of Defence Personnel who are awardees of gallantry decoration, Paramvir Chakra/Mahavir Chakra, in I)erson or posthumously). All the three were given admission. b. There were 5 candidates falling in category 2. They were admit- ~ H 328 ·suPREME COURT REPORTS· (1991) SUPP. 2 S.C.R. c. Only one candidate falling in category 3 appeared and .was given the seat; · d. There were 90 candidates falling in category 4. But only 6 seats were available (nine seats having been taken away by sub-cat­ egories a to c). These six seats were aliotted on the basis of inter-se merit among the candidates falling in this category. The first respondent being at a fairly lower position in this merit list could not be given the admission. No seats were left for being allotted to candidates falling in category 5. Finding that he has not been given admission in this College,' the first respondent filed a writ petition in the High Court of Punjab and Haryana being C.W.P. No.12644 of 1991. His contention was that his father Major Kuldip Singh Malik was awarded Shaurya Chakra for acts of gallantry, that Shaurya Chakra is equivalent to Vir Chakra, in all respects and, therefore, his case ought to have been considered in category I and not ~n category 4. He submitted that along with bis application for admis­ sion he had enclosed a copy of the citation awarded by the President of Jildia to his father showing that his father Major Kuldip Singh Malik was awarded Shaurya Chakra for displaying exemplary courage and leadership in the course of bis duties in the Mizo Hills. He complained that two of the candidates admitted under category l have received less marks than he. The High Court has allowed the Writ Petition on the following reasoning: "According to Regulation 695 of the Defence Services Regula­ tions relating to the Army, issueit l)y the Ministry of Defence, Government of India, Sbaurya Ch'akra is awardable for gal­ lantry and comes after Ashoka Chakra and Kirti Chakra. Fur­ ther, according to Regulation 717, in order of precedence, this award of Shaurya Cbakra is at number thirteen, that is immedi­ ately below Vir Chakra and Param Vir Chakra: is at number two and Maha Vir Chakra is at number seven. Despite all this, the respondents, while considering the candidature of the peti­ tioner, did not grant him admission to the Bachelor of Engi­ neering Course in the current session even though be was higher in academic merit as compared to respondent Nos. 3 and 4 who have been granted such admission. ' In reply, the respondents have pleaded that no doubt the father of the petitioner was decorated with Shaurya Chakra award in CHANDIGARH ADMINISTRATION v. MANPREET SINGH 329 1969, but it is gallantry award and is not strictly covered by A the rules, regulations and the prospectus of the College, though it is admitted that both respondents Nos.3 and 4, who have been granted admission, were lower in merit than the peti­ tioner, so far as the academic record is concerned. After hearing the learned counsel for the parties, we find that the approach of the respondents in rejecting the candidature of B the petitioner is neither legally correct nor just and fair. How~ ever, as respondent Nos.3 and 4 who are lower in academic merit than the petitioner, happen to be the sons of the awardees of Vir Chakra and Maha Vir Chakra respectively, it would be unfair if the admission already granted to them by the Chandigarh Administration and the Punjab Engineering College, Chandigarh, is set aside. Resultantly, we allow this petition and issue a direction to respondent Nos. 1 and 2 to admit the petitioner against the category of sons/daughters of awardees of gallantry decora­ tions, without disturbing the admission of respondents Nos.3 and 4. In case no such seat is available for the pet,itioner, the respondents shall create a seat for the purpose forthwith. This shall also be deemed to be a direction to the Punjab University for according necessary approval for the creation of the addi­ tional seat. There shall be no order as to costs." The decision of the High Court was rendered on 28th August, 1991. The present S.L.P. was filed in this court on 7th October, 1991. In fact, it appears that having waited for one month and not having been admitted in the college-in pursuance of the Judgment, the first. respondent took pro­ ceedings for Contempt against the College Authorities. The first respond­ ent, was admitted in the college on 28th October, 1991. It is now stated by his counsel that the first respondent has given up his seat in another college (Jamia Millia), on being admitted to this College. The writ peti­ tion came up for final hearing before us on 15.11.1991. We disposed of the SLPs on that day stating that reasons for our orders will be given today. S.L.P. No.16065191 Respondents l and 2 in this S.L.P. also applied for adfnission to · Punjab Engineering College as children of serving Defence Personnel. They too appeared for the comi:non Entrance Test along with other appli­ cants. Since the parents of the two respondents were serving Defence H Personnel, their ca5e was considered under category 5. As stated herein ·o 330 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R. before, no seats were left for being allocated to candidates falling in category 5. Respondents l and 2 were, therefore, not given admission in this College whereupon they approached the Punjab and Haryana High Court by way of a writ petition being C.W.P. No.12485 of 1991. Their case was that the categorisation of Defence Personnel was unjust and · unreasonable ·in as much as while the children and spouses of serving Defence Personnei are placed in category 5, children and spouses of Ex­ serviceman are placed· above them in category 4. According to the re­ spondents, children of serving Defence Personnel must be preferred over the children of Ex-servicemen. In a short order, the High Court allowed the writ petitfon and directed'that category 5 should be treated as category 4 and category 4 should be treated as category 5. The Court directed that admissions for the current year (1991-1992) shall be made accordingly. The order of High court is a short one and may be set out in its entirity: "After hearing the learned counsel for the parties and having gone through their pleadings, we are of the considered view that sub-categories No.I, 2 and 3 deserve to be retaine~ at : their appropriate present places. So far as sub-categories No.4 and 5 i.e. relating to the sons, daughters and spouses of the ex-, service personnel as well as the sons, daughters and spouses of __ servi¢e Defence personnel are concemed, we find that the ends of justice would be adequately met and the object for which the reservation has been provided would be achieved if the sons, daughters and spouses of serving Defence personnel are placed at sub-category No.4 i.e. above the category of Ex­ servicemen. This conclusion has been arrived ·at by us after considering the circumstances that the wards and spouses of serving Defence personnel are at a disadvantage in the absence of the.ir guardians serving at far off/distant places defending the country vis-a-vis who have retired from the military and are now living with their wards. Keeping these considerations in view, we dispose of this writ petition by issuing a direction to the respondent Union Territory Chandigarh and Principal, Punjab Engineering College, to go ahead with the admission of this reserved category. Therefore, so far as such categories 1,2 and 3 are concerned, there shall not be any change. However, we direct that so far as sub-category No.4 is concerned, per­ sons covered in this shall be considered at No. 5 and those covered in sub-category 5 are concerned, shall be considered at No. 4. The admission, which are going to be finalised tO­ morrow, shall not be made in accordance with these directions. A copy of the order be supplied Dasti also to the learned counsel for the parties." CHANDIGARH ADMINISTRATION v. MANPREET SINGH 331 This order was made on 30th August, 1991 whereas the present SLP A was filed in this Court on 7th October, 199 l. These respondents too took proceedings for contempt against the college for not implementing the direction of the High Court. They were admitted on 28th October, 1991. These respondents also say that on being admitted to this college they have given up their admission in other colleges. This SLP was heard alongwith SLP. No.16066 of 1991on15.11.91. B S.L.P.No.16451of1991 This petition for Special Leave is directed against the order dated 9th October, 1991 passed by a Division Bench of the Punjab and Haryana High Couit dismissing the writ petition filed by the petitioner. The peti- C tioner (writ petitioner) applied for admission to the Punjab Engineering College for the year 1991-92 under category 4 being the son of an Ex­ serviceman. By virtue of the directions given by the High Court in its order dated 30.8.1991 in C.W.P.No.12485 of 1991, category 4 became category 5 and category 5 became category 4 and admissions were being made on that basis. The petitioner who fell in category 4 (as per the .C prospectus of the College) and which was now converted to category 5 by virtue of the decision of the High Court aforesaid applied to the High Cowt to consider his case in category 4 itself and grant )lim admission. His writ petition was dismissed by the High Court on 9th October, 1991 under a short order which reads thus: "Admissions are being done as per the directions issued in Civil Writ Petition No.12485 of 1991, decided by the Division Bench on August 30, 1991. In view of the said decision, we do not find any merit in the contentions raised by the learned counsel for the petitioner. The Writ petitions dismissed. A copy of this order be given dasti." F · The petitioner is in fact questioning the correctness of the directions given by the High Court in C.W.P.No.12485 of 1991 disposed of on August 30, 91. . Counsel for Chandigarh Administration and.the College (petitioners G in SLP's 16066 and 16065 of 1991) contended that the High Court has exceeded its jurisdiction_in granting the impugned directions. He submit- ted that High Court, while exercising the writ jurisdiction conferred upon by Article 226 of the Constitution of India, does not sit as an Appellate Authority over the rule making authority nor can it re-write the rules. If the rule or any portion of it was found to be bad, the High Court could H have struck it down and directed the rule-making authority to re-frame the 332 SUPREME COURT REPORTS [1991) SUPP. 2 s.c.R, A rule and make admissions on that basis but the High Court could not have either switched the categories or directed that Shaurya Chakra should be treated as equivalent to Vir Chakra. By its directions, the High Couit has completely upset the course of admissions under this reserved quota and has gravely affected the chances of candidates falling in category 4 by · down-grading them as category 5 without even hearing them. These are B good reasons for the categorisation done by the Administration which was adopted by the College. He submitted that while Paramvir Chakra, Mahavir Chakra and Vir Chakra are awarded for gallantry in war, Ashok Chakra, . Kirti Chakra and Shaurya Chakra are awarded for gallantry, otherwise than in war. Shaurya Chakra was awarded to the father of the first respondent in SLP .No.16066 of 1991 for his gallant conduct in counter-insurgency C operations in Mizo Hills. It was not a war. He placed, before us, the true extract of order of precedence of awardees. It reads thus: "TRUE EXTRACT OF ORDER OF PRECEDENCE OF AW ARDS. 717. Order of Precedence of Awards- D The order of precedence of various awards is as follows:- Bharat Ratna Param Vir Chakra Ashoka Chakra Padma Vibhushan Padma Bhushan E Param Vishisht Seva Medal Maha Vir Chakra Kirti Chakra Padma Shri Sarvottam Jeevan Raksha Padak Ati Vishisht Seva Medal F Vir Chakra Shaurya Chakra The President's police and Fire Service Medal for galJantry. Sena/Nao Sena/Vayu Sena Medal Vishisht Seva Medal The Police Medal for gallantry G Uttam Jeevan Raksha Padak Wound Medal The General Service Medal 1947. Samar Seva Star 1965 Poorvi Star Paschimi Star H Raksha Medal 1965." CHANDIGARH ADMINISTRATION v. MANPREET SINGH 333 Counsel says that by its directions contained in the two orders im- A pugned herein, the High Court has exercised a jurisdiction, which really did not f:\elong to it. We are inclined to agree with him. Counsel for the petitioner in S.L.P.No.16451 of 1991 supported the aforesaid arguments. On the other hand, the counsel for respondents (writ petitioners in the High Court) in the first two SLPs. supported the order of the High Court and submitted further that since the said respondents have given up their seats in other colleges and have been admitted in the Punjab Engi­ neering College, any order throwing them out from the Punjab Engineer- ing College, at this juncture would cause them irreparable prejudice. They C submitted that the Chandigarh Administration and the College authorities have been sleeping over the matter until a contempt petition was filed and that they moved this Court only after they were summoned in the Con­ tempt proceedings. They should be held dis-entitled to any relief on ac­ c.ount of laches, submitted the counsel. We are of the considered opinion that the orders of High Court are wholly unsustainable. We shall consider both the directions separately. Let us first consider SLP 16066of1991, arising from C.W.P.12644/91. The rule as framed by the Chandigarh Administration and as pub­ lished by the College in its prospectus in the year 1991-92 placed in E category I children and s'pouses of only those Defence Personnel who were awardees of gallantry decorations of Paramvir Chakra, Mahavir Chakra or Vir Chakra in person or posthumously. It did not include Ashok Chakra, Kirti Chakra or Shaurya Chakra. The validity of the rule was not expressly questioned before the High Court. Assuming that it was so questioned and assuming that the High Court was satisfied that the rule was discrimina- F tory and bad for the reason of not including Ashok Chakra etc., the only course open to it was to strike down the offending rule. It could also have directed the authorities to reframe the rule and to make adrn issions ac­ cordingly. High Court however did not choose to do so. It merely directed that since Shaurya Chakra is immediately below Vir Chakra in the order of precedence and since respondents 3 and 4 in the writ petition admitted G under sub-category I have obtained lesser marks than the writ petitioner, he should be given admission without disturbing the admission given to respondents 2 and 3 in that writ petition. The entire reasoning of the High Court has been extracted by us herein above. It shows that absolutely no reason i.s assigned for granting the said direction. All that it says is that since Shaurya Chakra is also awardable for gallantry and is placed imme- H 334 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R. diately below Vir Chakra, the writ petitioner should be granted admission. -If really t~e High Court was of the opinion that Shaurya Chakra ~s equiva- / lent to V1r Chakra and should be treated on the same par as V1r Chakra'­ then it should spelt out the position also of Ashok Chakra and Kirti Chakra. which' are above Shaurya Chakra. According to the Rules notified chil­ dren/spouses of Ashok Chakra, Kirti Chakra & Shaurya Chakra awardees did not fall under category l nor under categories 2 or 3. They would fall under category 4 or category 5, as the case may be, depending upon whether their parent/spouse was an ex-service person or a serving person. There may have been other candidates who are the children/spouses of Shaurya Chakra awardees and for that matter, Ashok chakra and Kirti Chakra awardees who may have obtained more marks than the writ peti- - tioner (first respondent in SLP 16066 of 1991) but who did not eta~ a seat under category l nor were considered as such. They may not hav.e stated the fact of their parent/spouse being a Ashok chakra/Kirti Chakra Shaurya Chakra awardee, nor filed the relevant citation, since it was not relevant as per the published Rules. Had the proper course been followed, all of them could have applied properly and could have been considere_d-. By saying this we do not mean to say that the Rule is bad. We do not me'an to say so at all. There may be good reasons for the Rule as pub­ lished "'t or there may not be. That is not the issue. What we are saying is that if the High Court was of the opinion that all the gallantry awardees (including Ashok, Kitti arid Shaurya Chakra) should be placed in category I, it should have said so, struck down the category-and, may be, directed reframing of rule and admissions made on that basis. - Coming to SLP 16065 of 1991, the position appears to been e~en worse. Without assigning any reason the High Court has directed that category 4 should be made category 5 and category 5 should be made category 4. In short, it has switched these two categories. Again, we must say that if the High Court thought that this categorisation was discrimina­ tory and bad it ought to have struck down the categorisation to that extent and directed the authority to're-frame the rule. It would then have been open to the rule making authority either to merge these two categories or delete one or both of them, depending upon the opinion-they would have fonned on a review of the situation. We must make it clear again that we express no opinion on the question of validity or otherwise of the rule. We are only saying that the High Court should not have indulged in the exercise of 'switching' the categories, - and that too without giving any reasons thereafter. Thereby, it has practicably assumed the rule of rule­ making authority, or, at any rate, assumed the role of an Appellate Au­ thority. That is clearly not the function of the High Court acting under. Article 226 of the Constitution of India. Now, let us notice the implica­ tions and consequences of the said 'switching'. r . -~ ,: CHANDIGARH ADMINISTRATION v. MANPREET SINGH 335 By directing that category 4 should be treated as category 5 and A conversely category 5 should be treated as category 4, the High Court has prejudicially affected the rights of candidates falling under category 4 without even hearing them. It must be remembered that these categories are mentioned in the order of priority as emphasised hereinbefore. A rule­ making authority need not observe the rule of hearing, but the High Court exercising its judicial power cannot dispense with the requirement and B that is precisely the grievance of the petitioner in S.L.P.16451/91 arising from V.W.P.14606 of.1991. He was entitled to be considered under cat­ egory 4 (as per the prospectus) whereas by virtue of the High Court's order his category has become category 5, the result of which is that no seat may be left for his category, whereas the said category was entitled to some seats at least according to the Rules as framed and published by the C. Administration and College. Suffice is to say that the giving the said direction, while the admission were in progress, the situation has .been confounded beyond recall. Article 226 of the Constitution of India empowers the High Court to issue to any person or authority (including the government) directions, D orders or writs including writs in the nature of Habeas Corpus, mandamus, Prohibition, quo warrants and certiorari, or any of them for the enforce­ ment of any of the rights conferred by Part III and for any other purpose. - Though the Article itself does not contain any restrictive words, the Courts have, ever the years, evolved certain self-constraints though, we. E are not bound by the procedural technicalities governing these high prorogative writs in English law. As observed by a Constitution Bench in Bassappa v. Nagappa [1955] l S.C.R. 250 at 256: "In view of the express provisions in our Constitution we need not now look back to the early history or the procedural tech- F nicalities of these writs in English law, nor feel oppressed by any difference or change of opinion, expressed in particular cases of English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appro­ priate manner, so long as we keep to the broad and fundamen- tal principles that regulate the exercise of jurisdiction in the G matter of granting such writ in English Jaw." While this is not the place to delve into or detail the self-constraints to be observed by the Courts while exercising the jurisdiction under Arti- cle 226, one of them, which is relevant herein, is beyond dispute viz., while acting under Article 226, the High Court does not sit and/or act as H an Appellate Authority over the orders/actions of the Subordinate Authori- 336 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R. A ties/Tribunals. Its' jurisdiction is supervisory in nature. One of the main objectives of this jurisdiction is to keep the government and several other authorities and Tribunals within the bounds of their respective jurisdic­ tion. The High Court must ensure that while performing this function it does not overstep the well-recognized bounds of its own jurisdiction. Though we are satisfied that the orders and directions made by the High Court are totally unsupportable in law, the subsequent developments dissuade us from allowing these SLPs. As stated above, the three respond­ ents-writ-petitioners (first respondent in SLP.16066/91 and respondents I and 2 in SLP.16065/91) have been admitted into this college (Punjab Engineering College) on 28th October, 1991, whereupon they have given up the seats which they had obtained in other colleges. This statement of theirs is not disputed either by the Chandigarh Administration or the college authorities. Depriving the said respondents of their admission in this college at this stage would result in grave and irreparable prejudice to them. We think that the Administration and College authorities ought to have acted with more alacrity and approached this Court earlier than they did. By the -time, these SLPs were taken up by us and stay granted, the said respondents were already admitted into the College and, they say, they had given up their seats in the other colleges. On this score alone, _we decline to interfere with the orders in C.W.P.12644/91and12485/91. Now coming to SLP 16451 of 1991, the situation is this: By virtue of the orders of the High Court, three students who were not entitled to admission according to rules have been given admission against the three . vacancies which had arisen since the finalization of the admissions. The college authorities say that but for the orders of the High Court, these three vacancies would have gone to the first three candidates in the wait­ ing list. The petitioner in SLP 16451 of 1991 says that he is one such person in the waiting list and he would have obtained admission but for the admission given to the three candidates in pursuance of the High Court orders. We do not know whether the petitioner's case is true. All the same, we think it appropriate to make the following direction: the college authorities shall create three more seats in the said course and admit the first three available students in the waiting list against those seats. The Chandigarh Administration shall pass the necessary orders in this behalf. Action in terms of this direction shall be taken forthwith by the Chandigarh Administra1ion .. and the college authorities. Before we part with this case we wish to make an observation. In matters of this nature where the High court directs students to be admitted in Educational Institutions, it would be advisable if the High Court stays ... ,.,. - CHANDIGARH ADMINISTRATION v. MANPREET SINGH 337 the operation of its order for a period of about 3 to 4 weeks, if a request A therefor is made by the Educational Institution or the State, as the case maybe. SLPs disposed ofaccordingly. R.P. Petitions disposed of. ·