- (1.) By this petition, a direction is sought to accept the application for admission to the MBBS Course in the category WDP EXS2. Prayer aforesaid has been made in reference to the application submitted by the petitioner for admission in MBBS course in one of category out of many category meant for ex-servicemen. The different category of ex-servicemen has been given in the Instruction Booklet and petitioner is praying for inclusion in the category S2. It is looking to the fact that his father was discharged under Rule 13(3)III(v) of the Army Rules, 1954 thus, petitioner falls in the category S2.
(2.) I find that same controversy was considered by this court in reference to discharge of ex-personnel under the rule mentioned above. This court found that petitioner is not falling in the category S2. The details reasons have been given in the case of Amit Mahla Vs. State of Rajasthan & Ors., S.B. Civil Writ Petition 14925/2013, decided on 30th May, 2014.
(3.) The judgment aforesaid is quoted hereunder: "Both the writ petitions involve common question of law thus were heard together and decided by this order. The petitioners and private respondents appeared in National Eligibility Entrance Test - 2013 (NEET) for admission to MBBS/ BDS courses. They have qualified the entrance test thus registered themselves for counselling conducted by the Convenor, Rajasthan NEET UG Admission Board. The petitioners claimed benefit of reservation under the category of defence personnel (serving/ retired) of Rajasthan origin. It was provided to a particular category of candidates belonging to the defence personnel. Petitioner - Amit Mahla's father was wounded in the action during operation Vijay (Kargil) and he was discharged (boarded out) from service on 8.5.1999. The respondents called all the candidates desirous to avail benefit of defence quota, however, to the surprise of the petitioner, candidates not entitled to the benefit of defence quota, were also called and given admission. It was without proper verification of the service record produced by the candidates. When the petitioner could know that consideration and admission would be made in violation of clause 4(d) of the Guidelines/ Rules then filed the present writ petition. The respondents were intended to give admission to the candidates who were not even falling in the particular category without calling the documents for verification. The earlier writ petition of the petitioners (CW 12947/2013) was disposed of with direction to make a representation/ legal notice afresh with expectation from the respondents not to act in violation of the guidelines. The respondents, thereafter, issued list of selected candidates on 25.7.2013, wherein, benefit of reservation was given to ineligible candidates while depriving eligible candidates. The petitioners, after getting information, found that private respondents have been given benefit of reservation though they are not eligible. The admissions given to ineligible candidates thus deserve to be cancelled while giving admission to the petitioners. Learned counsel for petitioners submits that as per the Guidelines at annexure-4, 1% seats after exclusion of the seats under sub-clause (a) and (b) was reserved on priority-cum-merit for natural born sons/ daughters of defence personnel (serving/ retired) of Rajasthan origin apart from military personnel (serving/ retired) of Rajasthan origin horizontally. Out of it, 50% seats was reserved for girls. It is submitted that while seeking reservation, private respondents applied under clause 4(d)(2) though were not falling in the said category. The category aforesaid was applicable only to the wards of those disabled in action and boarded out from service/ died while in service with death attributable to military service/ disabled in service and boarded out with disability attributable to military service. It is submitted that Chapter-III of Army Rules, 1954 deals with dismissal, discharge etc of the army personnel. Rule 12 of the Rules requires a certificate under section 23 which is called discharge certificate. As and when discharge certificate is issued, the rule under which a person is discharged, is mentioned. Rule 13 deals with discharge of army personnel of different categories on different grounds, which includes discharge on medical unfitness for further service. Those army personnel who are discharged either on completion of tenure or on other grounds and even at their own request, are discharged under rule 13(3)I(i)(a) or 13(3)I(iii). Learned counsel submits that respondent No.5 - Krishan son of Ghevar Ram Dudi was discharged under rule 13(3)I(iii) reach with 13(2A) of the Rules. The discharge under rule 13(2A) is either unconditionally or on fulfillment of certain conditions. The aforesaid has been referred because respondents have considered grant of disability pension to be boarding out from military service. The disability pension can be awarded even to a person who had completed his entire service and found to have disability thus attracts Regulation 179 of Pension Regulations for Army, 1961. The respondents failed to make difference between discharge under Army Rules with that entitlement of pension under Pension Rules because it is applied even if one is not boarded out due disablity. The respondents thus failed to consider the spirit of clause 4(d)(2) of the Guidelines while providing reservation. Reference of other private respondents has also been given to show that none of them were entitled to the benefit or reservation. The respondent No.6 - Jyoti Godara's father was discharged under rule 13(3) III(v) and not boarded out. Same is the case of respondent No.7 - Rakesh Kumar Datusaliya's father. Respondent No.8- Shruti Budania's father was discharged again under rule 13(3)I (iii) thus he was not boarded out as required under clause 4(d)(2) of the Guidelines. The prayer is made to direct the respondents to cancel the admission of those private respondents so as to accommodate the petitioners who were entitled to the benefit of reservation. The respondents No.5 to 10 have opposed the prayer made in the writ petitions. It is submitted that all the respondents were rightly given reservation under the quota meant for wards of defense personnel. All of them are covered by clause 4(d)(2) of the Guidelines which provide 1% reservation in favour of defense personnel. The respondents were rightly given benefit of reservation leaving the petitioners who are much below in the merit and candidates exist in between the private respondents and the petitioners thus even if the plea raised by the petitioners in regard to private respondents is accepted, a direction for admission of petitioners should not be given in absence of their merit position. Respective merit position of the petitioners viz-a-viz private respondents has been given in reply to show that respondents have secured higher merit than the petitioners. It is also submitted that case of each private respondent was scrutinised by the respondents in reference to the documents submitted by them. The scrutiny of the documents was made by a board/ committee comprising of military officers. They were having no bias or ill motive against the petitioners or connection with the private respondents, to favour. The petitioners have unnecessarily tried to confuse the facts in regard to discharge or boarded out from service with that of Pension Regulations. Reference of Regulations 173-A and 179 has been given to show that even if one is discharged on completion of tenure would be entitled to disability benefit if the disability was attributable or aggravated by military service. The petitioners have unnecessarily excluded the categories which are covered by Pension Regulations, 1961 i.e. Regulations 173-A and 179 of the Regulations. All the private respondents are those whose father were discharged/ boarded out from military service due to disability. The details of each one has been given along with reference of service rendered by them and the discharge order which is sufficient to show that all of them were boarded out/ discharged due to disability attributable by military service thus entitled to the benefit of reservation. The prayer is made to dismiss the writ petitions. The official respondents, in their reply, justified their action. It is submitted that reservation was allowed not only in favour of meritorious candidates but those who are falling in the category in which 1% reservation is provided. Accordingly, they have justified their action. I have considered rival submissions of learned counsel for the parties and perused the record. These writ petitions pertain to admission in MBBS/ BDS courses. Petitioners as well as private respondents have claimed benefit of 1% reservation meant from defense personnel. It would be gainful to refer the provision under which reservation has been provided and the aforesaid is quoted for ready reference - "(d) 1% seats after excluding the seats of sub clauses(a), (b) are reserved on priority cum merit for the natural born (not adopted) sons/ daughters of Defence personnel (serving/retired) of Rajasthan Origin, and para military personnel (serving/ retired) of Rajasthan origin, horizontally. 50% out of these reserved seats shall be reserved for girls, unfilled seats will be reverted back to boys category. Priority order for Defence personnel of Rajasthan origin, in consultation with Director, State Soldier Welfare Board of Rajasthan, will be as under :- 1.Widows/ Wards of Defence Personnel killed in action. 2. Wards of those Disabled in action and boarded out from service/ died while in service with death attributable to military service/ disabled in service and boarded out with disability attributable to military service. 3. Widows/ Wards of Gallantry Award winners. 4.Widow/ wards of ex-service men." The provision quoted above reveals that after providing reservation to other categories as given in sub-clause (a) and (b), 1% reservation would be for natural born son/ daughter of the defence personnel of Rajasthan origin. Out of the reserved seats, 50% have been kept for girls. The reservation aforesaid is provided in order of priority given therein. The first priority is to the widows/ wards of defense personnel killed in action. Second priority is given to the widows/ wards of those disabled in action and boarded out from service/ died while in service with death attributable to the military service/ disabled in service and boarded out with disability attributable to the military service. Second priority given under clause 4(d)(2) is relevant for the present matter because petitioners as well as private respondents have claimed their right under the aforesaid provision. The clause aforesaid have to be divided in three parts out of which one would be for wards of those disabled in action and boarded out from service. Second is for the wards of those died while in service with death attributable to the military service. And, lastly, disabled in service and boarded out with disability attributable to the military service. In view of the bifurcation aforesaid, first category would be of those who disabled in action and boarded out from service thus disability should be while in action and boarded out from service. The second is when defence personnel died while in service with death attributable to the military service. Thus, both are co-related and should be while in action or death attributable to military service. Lastly, those disabled in service and boarded out with disability attributable to military service. The question now comes as to whether any of the private respondents are the wards who can fall under clause 4(d)(2) of the Guidelines or not. It is, no doubt, true that private respondents are having higher percentage of marks but that alone cannot help in getting reservation. To find out whether the private respondents fall in the category of clause 4(d)(2) of the Guidelines or not, opinion was sought from the Dy Judge Advocate General. The initial report was contested by the petitioners on the ground that their documents were not considered and, accordingly, further direction was given for second opinion after considering the documents furnished by the petitioners. In view of the directions, second opinion was also furnished and had been taken on record. The question for my consideration is as to whether any of the private respondents so as the petitioners fall under clause 4(d)(2) of the Guidelines referred to above and, for that purpose, I am considering case of each private respondents so as the petitioners. Respondent No.5-Shri Krishan son of Shri Ghevar Ram Dudi - So far as respondent No.5 - Shri Krishan is concerned, his father Shri Ghevar Ram Dudi was enrolled in Army on 5.3.1987. He was detected for Pulmonary Tuberculosis in January, 2001. On medical examination, he was given category P-3 thus rendered unfit to serve in High Altitude Areas. He was then upgraded to medical category P-2 in February, 2008 though, in between, he was promoted to the post of Naid Subedar in the medical category given to him. He was finally discharged from Army under rule 13(3)I(iii) though he was willing to serve. He was discharged without completion of the normal term. The facts given above shows that discharge was without completion of normal tenure. If the diseases are looked into, respondent No.5' father was suffering from Pulmonary Tuberculosis and even suffered from Inguinal Hernia which may be or may not be attributable to the military service. However, I will express opinion in favour of the respondent No.5 as his father was discharged without completion of normal tenure and it is on account of lower medical category and despite of his willingness to serve thus benefit is extended in favour of the respondent No.5 for the reason above because Pulmonary Tuberculosis can be attributable by the military service. Respondent No.6-Jyoti Godara d/o Manphool Singh Godara - Her father Manphool Singh Godara was enrolled in the Army in June, 1985 and he was discharged from service on 1.6.1996. He was also suffering from Pulmonary Tuberculosis thus was given 'permanent low medical category'. His Commanding Officer certified that the individual cannot be suitably employed in his category, therefore, he was discharged under Army Rule 13(3)III(v). He was also discharged before completion of normal term of engagement though he was willing to continue in service. The case of the respondent No.6 is having similarity to the case of respondent No.5 thus I will maintain my opinion for respondent No.6 as has been given for respondent No.5 and, accordingly, respondent No.6 was also entitled to the benefit of reservation provided in clause 4 (d) (2) of the Guidelines. Respondent No.7-Rakesh Kumar Datusaliya s/o Vijay Pal Singh - His father was enrolled in the Army and discharged from service under rule 13(3)III(v) of the Army Rules on 31.12.2007. The record as was seen and produced even before the Dy Judge Advocate General to whom the matter was sent for opinion reveals that his father was suffering from 'low backache'. It is said to be aggravated by military service and his service tenure was also shortened. There is nothing on record to show that 'low backache' was attributable by the military service though finding recorded by the Dy Judge Advocate General after going through the record shows that disability was aggravated by the military service. The question for my consideration is as to whether discharge due to disability aggravated by the military service would also fall in clause 4(d)(2) of the Guidelines. The respondents have taken it to be a case of discharge due to disability attributable even though it was aggravated by military service, as disability pension was given. A serious contest was made by learned counsel for petitioners to the aforesaid. Regulations 173 and 179 of the Pension Regulations have been referred by both learned counsel and I find that merely grant of invalid pension would not mean discharge due to disability attributable by military service because as per Regulation 173-A of the Pension Regulations of Army 1961 those who are discharged because no alternative employment in their own trade/category suitable to their low medical category could be provided and personnel was unwilling to accept the alternative employment or if retained in alternative employment are then discharged before completion of their engagement, they would be deemed to have been invalided from service and entitlement of pension. The deeming clause is only to make ex-personnel to be entitled to the invalid pension but it does not mean that his disability should be treated due to disability attributable by the military service. If the discharge due to disability attributable to the military service is there, then a candidate is otherwise entitled to the invalid pension and deeming clause is not required to be applied. It is therefore only Regulation 173 A was made to extend benefit even to those who are not discharged due to disability attributable or aggravated due to military service by extending it with deeming clause. Thus, Regulation 173A does not help the respondent on that issue. So far as Regulation 179 is concerned, it applies to the individual retired or discharged on completion of the tenure or completion of term of engagement etc and was found suffering from disability attributable or aggravated by military service. Here again deeming clause has been provided. If it is a case of discharge due to aggravation of the service due to military service, the case would not fall under clause 4(d)(2) of the Guidelines because what is required is disability attributable by the military service and not aggravation. The respondents have referred Regulation 179 which operates for extension of benefit of invalid pension by deeming clause. It cannot mean that by virtue of grant of invalid pension, discharge should be treated to be due to disability attributable by the military service. In fact, discharge on account of disability aggravated by the military service is also entitled for invalid pension. Regulation 179 gives benefit even to those who are not discharged due to disability attributable by the military service. It is therefore only, deeming clause has been applied but the aforesaid cannot change nature of discharge by itself. Clause 4(d)(2) of the Guidelines does not provide a category of discharge due to disability aggravated by the military service. In view of above, I am of the opinion that respondent No.7 was wrongly extended benefit of reservation for the category of clause 4(d)(2) of the Guidelines. What is required to fall in the said clause is a disability attributable by the military service and not a discharge which was on aggravation of disability due to military service. The difference has to be made between discharge aggravated due to military service and discharge attributable by the military service. If the respondents were intending to provide benefit even to those who are discharged due to aggravation of disability due to military service then nobody prevented them to do so by providing it but once it was not provided under the Guidelines, this court cannot insert a category to which respondents never intend to extend benefit. Accordingly, respondent No.7 was wrongly extended benefit of reservation while giving admission. Respondent No.8-Shruti Budania d/o Shisram Budania - Her father was discharged from military service on 1.12.2008. The case of this respondent is shown to be similar to that of respondent No.7-Rakesh Kumar Datusaliya. The opinion of the Dy Judge Advocate General shows sufferance of 'low backache' by the father thus her case is similar to that of respondent No.7 and as detailed discussion has been made in that regard hence, opinion expressed with regard to respondent No.7 would also apply to respondent No.8 and, accordingly, she was also not entitled to the benefit of reservation under clause 4(d)(2) of the Guidelines. Respondent No.9-Geetanand s/o Satbir Singh - His father was discharged from military service on 1.12.2010 as he was suffering from 'acute Myo Cardial infraction' due to exposure to extreme climate conditions while he was inducted to a post in 'OP Meghdoot' in Jammu & Kashmir. He was considered to be 'battle casualty(wounded)' as is evident from Part II order dated 28.7.2010. The disability was caused in Siachin Glacier Sector. As per the policy of the Army, the battle casualty personnel is retained in service till completion of term except in certain cases. Father of the respondent No.9 was discharged on completion of term as has been admitted by the respondent No.9 himself in his written arguments also. It is also stated therein that he was liable to serve for 5 more years or till the age of 54 years thus actual period of service was shortened but I find that discharge was under rule 13(3)1(i) which is not a discharge or boarding out of personnel from service as has been categorised under clause 4(d)(2) of the Guidelines/information bulletin. Hence, he was not entitled to the benefit of reservation. Though, it may be a hard case and sufferance of 'acute myo cardial infraction' was due to posting in Siachin Glacier Sector but he was continued in service till normal tenure and not boarded out on that ground. A military personnel having served for normal tenure and has not been boarded out, then his ward cannot claim benefit which otherwise is meant for a particular category as mentioned in clause 4(d)(2) to the Information Bulletin/Guidelines. Therefore, admission of respondent No.9 is also not legal. Respondent No.10-Rinku d/o Satbir Singh - So far as respondent No.10 is concerned, petitioners themselves have not made contest to her admission thus her admission is maintained in MBBS/BDS course. In view of the findings recorded above in respect of private respondents, it is held that out of 5 candidates (respondents No.5 to 9), 3 candidates (respondents No.7 to 9) were not entitled to the benefit of reservation under clause 4(d)(2) of the Guidelines thus their admissions are not legal. Now the question comes as to whether petitioners can be given admission in their place on cancellation of their admission The petitioners are, no doubt, falling under clause 4(d)(2) as opined by the Dy Judge Advocate General and even comes out from the facts available on record. The opinion of the Dy Judge Advocate General is supported by documents. The official respondents, however, pleaded that there are many candidates in between the petitioners and those who have been given admission. In the background aforesaid, petitioners cannot be given admission ignoring merit position and depriving others who would have been given admission if three private respondents are not considered against reservation. Accordingly, relief prayed by the petitioners for admission cannot be granted by this court. It is also a fact that admission cannot be allowed in mid session if petitioners would have been in merit and are wrongly deprived from admission. The appropriate and suitable direction for their admission for next academic session could have been given, but taking note of the peculiar facts available on record, I do not find that the prayer for admission of the petitioners in MBBS/BDS course can be granted. In view of the discussion made above, while holding that benefit of reservation given under clause 4(d)(2) of the Guidelines/ Information Bulletin has wrongly been extended to respondent No.7 to 9 for admission to MBBS/BDS course, petitioners would not be entitled for admission. In view of aforesaid, writ petitions so as the stay applications are disposed of.";