Hon'ble Saral Srivastava,J.
Heard Sri Kshitij Shailendra, learned counsel for the petitioner, learned Standing Counsel for the respondents No.1, 3 and 4, Sri Mahendra Pratap, learned counsel for the respondent No.2 and Sri H.N. Pandey, learned counsel for the respondent No.5.
The petitioner has preferred this writ petition for the purposes of getting the order dated 10.7.2018 passed by respondent No.2, Director General, Medical Education and Training/Chairman Counselling Board (NEET) UG 2018 quashed and for a direction to the respondents to admit him in the MBBS course in Ganesh Shankar Vidyarthi Memorial Medical College (GSVM), Kanpur pursuance to his qualifying the NEET UG - 2018 in the general category as a dependent of a Freedom Fighter.
The petitioner after qualifying the NEET UG - 2018, through counselling was allotted GSVM Medical College, Kanpur for admission in the MBBS course. The petitioner accordingly deposited the requisite fee. Thereafter an order was passed on 10.7.2018 cancelling the allotment of the seat to him on the ground that his certificate of dependent of a freedom fighter is not admissible as it has been issued by an authority of outside the State of U.P.
Sri Kshitij Shailendra, learned counsel for the petitioner submits that the grand-father (Nana) of the petitioner Laxmi Prasad Dubey is a freedom fighter and that he has submitted a certificate of his being dependent upon the freedom fighter which certifies that his grand father was a freedom fighter living in Hazaribagh, Jharkhand, drawing pension as a freedom fighter and that the petitioner is his dependent living in Allahabad, U.P. The genuineness of the said certificate is not disputed. Therefore, merely for the reason that his grand-father is living in Jharkhand he cannot be denied the benefit of a dependent of a freedom fighter in seeking admission to the MBBS course.
Sri Mahendra Pratap representing respondent No.2, Director General, Medical Education and Training/Chairman Counselling Board (NEET) UG - 2018 submits that the respondents are not disputing that the petitioner is a dependent of a freedom fighter but what is disputed is that the aforesaid freedom fighter is not a domicile of Uttar Pradesh and, as such, he cannot be recognised as a freedom fighter within the meaning of Section 2(d) of the U.P. Public Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (hereinafter referred to as the U.P. Act of 1993). Therefore, the respondent No.2 has not committed any illegality in ignoring his certificate of dependent of a freedom fighter and cancelling the allotment of seat to him.
The Standing Counsel appearing for respondent No.1, State of U.P. as well as Sri Pandey who appears for respondent No.5 have adopted the arguments of Sri Mahendra Pratap Singh as advanced on behalf of respondent No.2.
Sri Kshitij Shailendra, learned counsel for the petitioner in response to the defence put forth by the respondents, submits that the definition of the freedom fighter as contained in Section 2(d) of the U.P. Act of 1993 cannot be applied for the purposes of admission to the MBBS course. The said Act or the aforesaid definition of the freedom fighter has not been adopted for the purposes of admission and that even if it is applied it is discriminatory in nature as it discriminates between persons to be precise, freedom fighters living in India on the basis of their place of domicile.
The expression or term "freedom fighter" is of a general nature.
The Central Government for the first time came out with a scheme known as Freedom Fighter Pension Scheme, 1972 on the silver jubilee of the independence of India to grant pension to the freedom fighter and their family with effect from 15th August, 1972. Initially, the benefit of the pension under the scheme was provided to freedom fighters who were in need of financial assistance on account of their meagre annual income. However, w.e.f. August 1980 the benefit of the scheme was extended to all freedom fighters as a token of respect (Samman) to the freedom fighters. The said scheme provided the class of persons who were recognized as freedom fighters, inter alia, a person who had suffered a minimum imprisonment of six months (reduced to three months for women, SC/ST freedom fighters) before independence in mainland jails; an ex-INA personnel who was imprisoned or detained even in jail outside India; a person interned in his home or externed from his district for a period of six months or more; a person whose property was confiscated, attached or sold due to participation in the freedom struggle; a person who became permanent incapacitated during firing or lathi charge; a person who lost his job and thus means of livelihood for participation in the national movement etc. The aforesaid scheme made no distinction on the basis of place of residence of the person in according recognition of the status of a freedom fighter.
The aforesaid scheme was replaced by Swatantrata Sainik Samman Pension Scheme, 1980 which also do not provide for making any distinction on the basis of the place of residence of a person in recognising him to be a freedom fighter, if he is otherwise eligible for the Samman under the scheme.
The U.P. Act of 1993 was enacted with the object of providing reservation of posts, inter alia, in favour of the dependants of the freedom fighters in the matter of appointment on the vacancies in public services of the State Government. The aforesaid Act is an Act basically for providing reservation in public employment to the dependent of the freedom fighters and not a statute governing reservation for them in the matter of admission to any course of education. The aforesaid Act in Section 2(d) defines "freedom fighter" to mean a person domiciled in Uttar Pradesh who had participated in the freedom struggle of India. The aforesaid definition is quoted below:
"2. Definitions - In this Act -
(a) ...
(b) ...
(c) ...
(d) "freedom fighter" means a person domiciled in Uttar Pradesh who had participated in the freedom struggle of India and had -
The aforesaid definition treats only a person domiciled in Uttar Pradesh to be a freedom fighter subject to the fulfilment of other conditions. In other words, persons who are living outside of the State of U.P. and are freedom fighters have been excluded from the definition of the freedom fighter.
The Chief Secretary, Government of U.P. vide Government Order dated 21st April, 2015 for the purposes of providing reservation in the public service under the State in respect of issuance of certificate of dependants of freedom fighters, provided that such certificates shall be issued by the competent authority i.e. District Magistrate to the dependants as defined under Section 2((b) of the U.P. Act of 1993.
Another Government Order dated 12th June, 1980 in respect to the admission to the MBBS course for the session 2018-19, inter alia, with regard to issuance of certificate of dependants of freedom fighters provides that the certificate as per the format prescribed under the U.P. Act of 1993 and as contemplate by the Government Order dated 21st April, 2015 shall be produced by the dependants of the freedom fighters at the time of counselling.
A conjoint reading of the provisions of the U.P. Act of 1993, specially the definition of freedom fighter contained in Section 2(d) of the Act and the aforesaid two Government Orders dated 21st April, 2015 and 12th June, 2018 makes it clear that for the purposes of admission to the MBBS course, a candidate seeking benefit of dependent of a freedom fighter shall provide a certificate of dependent of freedom fighter of a competent authority i.e. District Magistrate in the format prescribed as per the aforesaid Act. Thus, under the aforesaid Government Orders only the formant of the certificate of dependent of freedom fighter has been adopted and not the Act as a whole.
We have not been shown any material or document which could establish that U.P. Act of 1993 has been adopted for the purposes of granting admission to the MBBS course or that the definition of the freedom fighter as contained therein has been accepted.
For the sake of argument even if on the basis of format of certificate provided under the U.P. Act of 1993 it is assumed that the definition of the freedom fighter as per Section 2(d) of U.P. Act of 1993 has been incorporated or adopted, the question which arises for consideration is whether any distinction can be made in recognising a person to be a freedom fighter on the basis of place of his domicile.
Article 14 of the Constitution of India recognises right to equality and provides that the State shall not deny any person the equality before law. Article 15 of the constitution prohibits State from discriminating against any citizen on the ground of religion, race, caste, sex, place of birth or any of them.
In other words, no distinction or discrimination can be made between citizens on the basis of gender, place of birth which takes into its fold the place of domicile as well.
The U.P. Act of 1993 vide Section 2(b) defines 'dependent' to mean a son and daughter (married or unmarried), grandson (son of a son) and unmarried granddaughter (daughter of a son) of the freedom-fighter. The said definition excluded the son of a married daughter of the freedom-fighter.
In Isha Tyagi Vs. State of U.P. and others 2014 (6) AWC 6138 His Lordship Dr. D.Y. Chandrachud, the then Chief Justice of Allahabad High Court (as he then was) in writing the opinion for the division bench considered the matter of horizontal reservation for descendants of freedom fighters in Medical Colleges of the State and held that the State cannot discriminate on the basis of gender by allowing dependants of the sons of the freedom fighters the benefit of reservation and not to the sons of a married daughter. In holding so, he relied upon National Legal Services Authority Vs. Union of India (2014) 5 SCC 438 which held that discrimination on the basis of gender identity would be contrary to the Article 14, 15 and 21 of the Constitution.
In view of what has been stated above and the opinion of the above referred Division Bench, it is apparent that no distinction can be made between freedom fighters on the basis of their place of birth or domicile.
There is another angle to visualize the above controversy. A freedom fighter is a person who fought for the independence of India and suffered. He may be a person of any caste, religion, sex or place but if he fulfils the criteria of a freedom fighter he would be a freedom fighter and his place of residence or domicile would have nothing to do with his status as freedom fighter. His dependent would be entitle to the benefit of reservation, if it is so provided in law.
The decision dated 19.7.2017 of the Division Bench of the Allahabad High Court in Special Appeal No.137 of 2016 State of U.P. and others Vs. Tejaswi Kumar Pandey though deals with the definition of freedom-fighter as appearing in U.P. Act of 1993 but it is in context with the service matter and, therefore, the Court had strictly applied the said definition, more particularly as the vires of the definition was not challenged.
The case at hand is not a service matter and though the vires has not specifically been challenged nonetheless the petitioner has disputed not only the applicability of the said definition but its correctness on the ground of discrimination. Thus, we feel that the aforesaid decision is of no help to the respondents.
There is no dispute that the grand-father of the petitioner is a freedom fighter and the petitioner is his dependent. Thus, the place of residence of petitioner's grand-father does not have any effect either on the status of the petitioner being the dependent of a freedom fighter or his grand-father being a freedom fighter. A freedom fighter living in any place in India would remain a freedom fighter and he does not looses his status by shifting his domicile from one place to another. The nation recognises him to be a freedom fighter irrespective of his place of birth or residence etc. If the above pragmatic view is not taken, a single person may be a freedom fighter in one place of living and an ordinary citizen at some other place. His status will be fluctuating creating confusion as same person cannot have the dual character of a freedom fighter as well as of a normal citizen.
Consequently, we are of the opinion that the law cannot exclude freedom fighters domiciled outside U.P. from their status of a freedom fighter and, therefore, the condition of domicile contained in Section 2(d) of U.P. Act of 1993 has to be ignored to bring it within the fundamental framework of the principle of equality contained in Articles 14 and 15 of the Constitution of India.
In view of the aforesaid facts and circumstances, the impugned order dated 10.7.2018 passed by respondent No.2 cannot be sustained in law and is hereby quashed with the direction to the respondent No.2 to allow the petitioner to take admission in the MBBS course in GSVM Medical College, Kanpur on completing requisite formalities which the petitioner would complete latest by 31st August, 2018, the last date prescribed for admission and the respondents will not create any hurdle in his way, rather cooperate so that he is able to complete and get admission within the time schedule.
Accordingly, the writ petition is allowed.
No order as to costs.
Order Date :- 30 August, 2016 Brijesh