MUSKAN SAMIR MODASIA Vs. UNION OF INDIA
LAWS(BOM)-2020-11-222
HIGH COURT OF BOMBAY
Decided on November 24,2020

Muskan Samir Modasia Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) It is not in dispute that the petitioner is a domicile of Daman. It is further not in dispute that during 2014 to 2016, the petitioner pursued studies in Classes VIII to X in a school in Sarigram, Gujarat, which is at a distance of 17 kilometers from her residence in Daman. It is also not in dispute that the petitioner shifted to Ahmedabad, Gujarat to pursue her studies in Classes XI and XII. Much would depend on the second and third incidents referred to above for the purpose of a decision on this writ petition, wherein multiple relief have been claimed by the petitioner for obtaining a priority in admission to the M.B.B.S. course in any one of the 58 seats reserved for candidates of Daman & Diu in NAMO Medical Education and Research Institute, Silvassa, Dadra & Nagar Haveli (for short, "the said college" hereafter) for the academic year 2020-2021. The prayers in the writ petition read as follows: a. that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus, or any other writ, direction, or order to direct that the Petitioner's candidature be considered at par with those students who have studied continuously from St. VIII to XII in a school recognized by Union Territory of Dadra and Nagar Haveli and Daman and Diu as per Guideline No.4(a) of Policy No.:-DHMS/ Med. Edu./ 2020-21/ M.C./ 95/ 6970 'being Policy for Admission to MBBS Course in NAMO Medical Education and Research Institute, Silvassa, Dadra and Nagar Haveli and Daman and Diu for the Academic Year 2020-2021' dated 8th August 2020 issued by the Department of Health and Family, Dadra and Nagar Haveli and Daman and Diu; b. that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of a Mandamus, or any other writ, direction, or order to direct Respondent No.2 to include the candidature of the Petitioner on the basis of her permanent residence and/ domicile status in the Union Territory within the scope of Guideline No.4(a) of Policy No:-DHMS/ Med. Edu./ 2020-21/ M.C./ 95/ 6970 'being Policy for Admission to MBBS Course in NAMO Medical Education and Research Institute, Silvassa, Dadra & Nagar Haveli and Daman and Diu for the Academic Year 2020-2021' dated 8th August 2020 issued by the Department of Health and Family, Dadra and Nagar Haveli and Daman and Diu; c. that this Hon'ble Court be pleased to declare the second part of Guideline No.4(a) i.e. "and has studied continuously from Class 8th to 12th in any of the recognized schools of that UT" of the Policy No:-DHMS/ Med. Edu./ 2020-21/ M.C./ 95/ 6970 'being Policy for Admission to MBBS Course in NAMO Medical Education and Research Institute, Salvassa, Dadra & Nagar Haveli and Daman and Diu for the Academic Year 2020-2021' dated 8th August 2020 issued by the Department of Health and Family, Dadra and Nagar Haveli and Daman and Diu, as unconstitutional, as it creates unintelligible discrimination between similarly placed students; d. that, in the alternate to the foregoing prayer (c), this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the natue of a Mandamus, or any other writ, direction, or order to direct the Respondents to keep the second part of Gudeline No.4(a) i.e. 'and has studied continuously from Class 8th to 12th in any of the recognized schools of that UT' in Policy No:-DHMS/ Med. Edu./ 2020-21/ M.C./ 95/ 6970 'being Policy for Admission to MBBS Course in NAMO Medical Education and Research Institute, Salvassa, Dadra and Nagar Haveli and Daman and Diu for the Academic Year 2020-2021' dated 8th August 2020 issued by the Department of Health and Family, Dadra and Nagar Haveli and Daman and Diu in abeyance for the current academic year i.e. 2020-21 and the admission procedure to be announced thereunder; e. that this Hon'ble Court be pleased to declare that the earmarking/ allocation of 8 (eight) seats to students from the state of Gujarat as stipulated in Guideline No.1 of Policy No:-DHMS/ Med. Edu./ 2020-21/ M.C./ 95/ 6970 'being Policy for Admission to MBBS Course in NAMO Medical Education & Research Institute, Salvassa, Dadra and Nagar Haveli and Daman and Diu for the Academic Year 2020- 2021' dated 8th August 2020 issued by the Department of Health and Family, Dadra and Nagar Haveli and Daman and Diu is unconstitutional as it is arbitrary and unreasonable in nature; f. that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of a Mandamus, or any other writ, direction, or order to direct the Respondents to reallocate to the Union Territory of Daman and Diu and Dadra and Nagar Haveli, the 8 (eight) seats currently earmarked/ allocated under Guideline No.1 of Policy No:-DHMS/ Med. Edu./ 2020-21/ M.C./ 95/ 6970 'being Policy for Admission to MBBS Course in NAMO Medical Education and Research Institute, Salvassa, Dadra & Nagar Haveli and Daman and Diu for the Academic Year 2020-2021' dated 8th August 2020 issued by the Department of Health and Family, Dadra and Nagar Haveli and Daman and Diu' g. that this Hon'ble Court be pleased to declare that the procedure prescribed in Guideline No.2.5 for the Government of Gujarat for nominating students for the 8 (eight) seats earmarked/ allocated for students from the state of Gujarat under Guideline No.1 of Policy No:-DHMS/ Med. Edu./ 2020-21/ M.C./ 95/ 6970 'being Policy for Admission to MBBS Course in NAMO Medical Education and Research Institute, Salvassa, Dadra and Nagar Haveli and Daman and Diu for the Academic Year 2020-2021' dated 8th August 2020 issued by the Department of Health and Family, Dadra and Nagar Haveli and Daman and Diu, is unconstitutional, as it is arbitrary and unreasonable in nature; h. that, in the alternative to the foregoing prayer g., this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of a Mandamus, or any other writ, direction, or order to direct the Respondents to stipulate a detailed 'merit-based' procedure to be followed by the Government of Gujarat while nominating students for the 8 (eight) earmarked/ allocated to students from the state of Gujarat as stipulated under Guideline No.1 of Policy No:-DHMS/ Med. Edu./ 2020-21/ M.C./ 95/ 6970 'being Policy for Admission to MBBS Course in NAMO Medical Education and Research Institute, Salvassa, Dadra and Nagar Haveli and Daman and Diu for the Academic Year 2020-2021' dated 8th August 2020 issued by the Department of Health and Family, Dadra and Nagar Haveli and Daman and Diu' i. that, pending the hearing and final disposal of the present Writ Petition, this Hon'ble Court be pleased to stay the effect, implementation, and operation of Policy No:-DHMS/ Med. Edu./ 2020-21/ M.C./ 95/ 6970 'being Policy for Admission to MBBS Course in NAMO Medical Education and Research Institute, Salvassa, Dadra and Nagar Haveli and Daman and Diu for the Academic Year 2020-2021' dated 8th August 2020 issued by the Department of Health and Family, Dadra and Nagar Haveli and Daman and Diu' j. that this Hon'ble Court be pleased to grant interim and ad-interim reliefs in terms of prayer clause (i) above; and k. that this Hon'ble Court be pleased to grant such further and other reliefs as may be deemed necessary by this Hon'ble Court in the interest of justice."
(2.) Out of 150 available seats for admission in the M.B.B.S. course in the said college, inter alia, 22 seats are reserved for the All India quota, and 58 seats each for the candidates of Dadra & Nagar Haveli and Daman & Diu. The eligibility criteria that a candidate aspiring for admission to pursue M.B.B.S. course of study in the said college is set out at paragraph 3 of the notice published in the official gazette of the Union Territory Administration of Dadra & Nagar Haveli and Daman & Diu, dated October 8, 2020 (for short, "the Policy" hereafter). Paragraph 4 of the Policy provides for four categories of priority in admission for local candidates of Dadra & Nagar Haveli and Daman & Diu. Since we are concerned with the "first priority" and the "second priority", its terms are set out hereinbelow. "4. PRIORITY IN ADMISSION: For the seats earmarked for candidates of Dadra & Nagar Haveli and Daman and Diu, the candidates will be considered for admission in the following order of priority, a. First priority:- Applicants whose parents/ guardians (in case Father and Mother are not alive) are Domicile of the UT of Dadra and Nagar Haveli and Daman and Diu as the case may be and the applicant has studied continuously from Class 8th to 12th in any of the recognized schools of that UT. "Students from the different districts in U.T. of DNH and DD who have studied from class 1 to 10th in the respective district in U.T. of DNH and DD and due to non availability of 11th and 12th classes in the concerned board/stream in the respective district in U.T. of DNH and DD, will only be given relaxation in the above criteria. The students will have to produce a certificate for non availability of Class XI and XII from the Assistant Director of Education of the respective district in U.T. of DNH and DD". b. Second priority:- If the seats remain vacant after allotment of seats to candidates belonging to the first priority, they will be offered to candidates whose parents/ guardian (in case Father and Mother are not alive) are Domicile of UTs of Dadra and Nagar Haveli and Daman and Diu as the case may be and candidate has studied in any recognized educational institution anywhere in the country or abroad.
(3.) The petitioner appeared for the National Eligibility- cum-Entrance Test, 2020 (for short, "NEET, 2020 hereafter) conducted by the National Testing Agency on September 13, 2020. Upon declaration of result on October 16, 2020, the petitioner found that she had obtained 325 out of 720 marks. It is claimed, on the basis of such marks, that the petitioner qualified for admission in the M.B.B.S. course for the Academic Year 2020-2021. It is, however, the admitted case of the petitioner that as per the aforementioned priority-wise segregation stipulated in the policy, she fell under second priority (paragraph 4.28). Aggrieved by the stipulation in paragraph 4(a) that those candidates, who had studied continuously from Classes VIII to XII in any of the recognized schools of the relevant Union Territory would be entitled to the "first priority", the petitioner has approached this Court with this writ petition under Article 226 of the Constitution seeking the relief noted above.;


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