Farzana Batool vs Union Of India

2021 INSC 246 Reportable

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No 364 of 2021

Farzana Batool Petitioner

Versus

Union of India and Others Respondents

WITH

Writ Petition (Civil) No 375 of 2021

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 These proceedings under Article 32 have been instituted by two students

from Ladakh. They have been nominated by the Administration of the Union

Territory of Ladakh for admission to the MBBS degree course under the

‘central pool’ seats set apart by the Union Ministry of Health and Family

Welfare. One of them has been allocated against a seat at Lady Hardinge

Medical College (“LHMC”). The other has been assigned to Maulana Azad WP(C) 364/2021 2

Medical College (“MAMC”). Unfortunately, these students have not yet been

admitted to their course of studies despite due nomination by the

Administration of the Union Territory of Ladakh and in terms of the seats

notified by the Union Government. We have been constrained to take up the

issue under Article 32, since the fundamental rights of students from Ladakh

to pursue professional education are implicated. We will in the course of this

judgment deal of course with the grievance of the two students. But we

intend to deal with the issue on a systemic basis so that other students who

may lack resources, or simply the knowledge about legal remedies, are not

deprived of education.

2 Notice was issued in these proceedings on 26 March 2021. In pursuance of

the order, Mr Rupinder Singh Suri, Additional Solicitor General appears for

the Union of India while Mr K M Nataraj, Additional Solicitor General appears

on behalf of the Administration of the Union Territory of Ladakh through the

Director of Health Services, Ladakh (“DHSL”). The Office Report indicates

that LHMC and MAMC have been served.

3 By a Memorandum dated 9 April 2020, the Government of India through the

Ministry of Health and Family Welfare (“MHFW”), issued guidelines for the

allocation of the general pool MBBS/BDS seats for 2020-2021. By a

Notification dated 23 November 2020, the MHFW (Department of Health and

Family Welfare) allotted, inter alia, one seat at LHMC to the Union Territory of

Ladakh from the central pool. A similar allocation of one seat was made at

MAMC. These allocations were made for the Ladakh central pool medical WP(C) 364/2021 3

seats for the year 2020-2021.

4 Through a communication dated 19 February 2021 issued by the

Administration of the Union Territory of Ladakh, the DHSL forwarded the list

of selected candidates from Ladakh to be admitted in the central pool

medical seats for the year 2020-2021. For convenience of reference,

Annexure A to the Notification DHSL(21) of 2021 dated 19 February 2021 is

extracted below:

Annexure - “A” (Selected/Nominated list)

Order No:27/DHSL(21) of 2021, Dated 19/02/2021

S.No. Details of the Category NEET, Discipline College Candidates Score allotment 1 Mohammad Mehdi Unreserved 440 MBBS Maulana Azad Waziri S/o Kargil Medical College, Mohammad Ali, New Delhi R/o: Sankoo, (1st preference) Kargil 2 Mohammad Imran Reserved 437 MBBS Medical College S/o Abdul Razak, Common Ambikapur, R/o: Drass, Kargil Seniority Sarguja, Combined Chhattisgarh Ladakh (2nd preference)

3 Nadeem Hussain Reserved 407 MBBS M.L.B. Medical Shabani S/o Mohd Kargil College Jhansi, Hussain, R/o: Uttar Pradesh Pashkum, Kargil (2nd preference)

4 Farzana Batool Unreserved 403 MBBS Lady Hardinge D/o Kalbi Ali, R/o: Kargil Medical College, Pashkum, Kargil New Delhi (2nd preference)

5 Masooma Khanum Reserved 386 MBBS VCSGGMS & RI, D/o Sheikh Kargil Srinagar, Garwal, Mohammad Hussan, Uttarakhand R/o: Sankoo, Kargil (3rd preference) WP(C) 364/2021 4

6 Stanzin Palzom D/o Unreserved 347 MBBS MGIMS, Wardha, Sonam Namgail, R/o: Leh Maharashtra Hemis Shukpachan, (6th preference) Leh 7 Tsering Gazes D/o Unreserved 340 BDS K.G. Dental Rinchen Tashi, R/o: Leh College, Lucknow, Chemday, Leh Uttar Pradesh (6th preference)

8 Dechen Angmo D/o Reserved Leh 339 BDS K.G. Dental Tsewang Phunchok, College, Lucknow, R/o:Leh, Ladakh. Uttar Pradesh (5th preference)

9 Lamo Dolma D/o Reserved Leh 325 BDS College of Stanzin Gonboo, Dentistry R/o:Khardong, Indore Nubra, Leh. (8th preference)

(emphasis supplied)

The name of the petitioner in Writ Petition (Civil) No 364 of 2021 appears at

serial no 4, while the name of the petitioner in Writ Petition (Civil) No 375 of

2021 appears at serial no 1.

5 The two writ petitions before this Court under Article 32 of the Constitution

have been instituted for seeking directions to facilitate the students to be

admitted respectively at LHMC and MAMC, so as to facilitate them to pursue

their studies for the MBBS degree course. The petitioner in the first of the

two petitions (Writ Petition (Civil) No. 364 of 2021) is Ms Farzana Batool. The

petitioner in the second writ petition (Writ Petition (Civil) No. 375 of 2021) is

Mr Mohammad Mehdi Waziri.

WP(C) 364/2021 5

6 The grievance is that though the petitioners have been duly nominated by

the DHSL, the admission process of the petitioners has not been confirmed.

This is even though other similarly placed students nominated by the DHSL,

who were allotted to different institutions, have had their admissions

confirmed.

7 Having regard to the predicament of the petitioners, this Court issued notice

and as noted above, the Government of the Union Territory of Ladakh and

the Union MHFW are represented by the Additional Solicitor Generals, Mr

Rupinder Singh Suri and Mr K M Nataraj. Both the ASGs state that since due

allocations have been made in favour of the two petitioners, there is no

reason and justification to deny them the benefit of admission to the courses

for which the allocation has been made.

8 In view of the above position, we direct that the admission formalities for the

petitioner, Ms Farzana Batool be completed at the LHMC immediately and, in

any event, within a week from today. Similarly, the admission formalities

pertaining to Mr Mohammad Mehdi Waziri at MAMC be completed

immediately and, in any event, within a week from today. In order to obviate

the hardship which has been caused to these students, we also direct that all

the students who are referred to in Annexure A to the Notification dated 19

February 2021, as extracted above, be granted admissions to the concerned

institutions, if not already given so far. We are issuing these general

directions in order to obviate the possibility of each of the similarly placed WP(C) 364/2021 6

students being required to move this Court. Financial hardship should not

prevent the students from getting admission in terms of the allocation which

has been made in their favor legitimately under the central pool seats.

9 Given that the issue raised in this case concerns access to education, albeit

at the professional level, we would like to take this opportunity to underscore

the importance of creating an enabling environment to make it possible for

students such as the petitioners to pursue professional education. While the

right to pursue higher (professional) education has not been spelt out as a

fundamental right in Part III of the Constitution, it bears emphasis that access

to professional education is not a governmental largesse. Instead, the State

has an affirmative obligation to facilitate access to education, at all levels.

10 This obligation assumes far greater importance for students whose

background (by virtue of such characteristics as caste, class, gender,

religion, disability and geographical region) imposes formidable obstacles on

their path to accessing quality education. Indeed, as the Committee on

Economic, Social and Cultural Rights (“ICESCR Committee”)1 notes in

General Comment 13, “As an empowerment right, education is the primary

vehicle by which economically and socially marginalized adults and children

can lift themselves out of poverty and obtain the means to participate fully in

their communities”2.

1 This is a committee formed to monitor the implementation of International Covenant on Economic, Social and Cultural Rights (the “Covenant”), which was ratified by India in 1979. Further, it also issued ‘General Comment(s)’, which function as interpretative tools for the various provisions of the Covenant. 2 ICESCR Committee, ‘General Comment No. 13: The right to education (Article 13)’ (8 December 1999) Un Doc E/C.12/1999/10, para 1.

WP(C) 364/2021 7

11 Article 26(1) of the Universal Declaration of Human Rights, which is a source

of persuasive value, obligates every State Party to ensure that technical and

professional education is made generally available and that higher education

is equally accessible to all on the basis of merit. In its General Comment 13,

the ICESCR committee outlined four essential features that education at all

levels must possess. Pertinently, one such feature is ‘accessibility’. Two of

the components of accessibility highlighted by the ICESCR Committee bear

emphasis. First, the guarantee of non-discrimination, in relation to which it

notes that, “education must be accessible to all, especially the most

vulnerable groups, in law and fact, without discrimination on any of the

prohibited grounds”. Second, economic accessibility, meaning that the state

party must take steps to ensure that financial constraints do not come in the

way of accessing education.

12 The ICESCR Committee pertinently notes that disparities in spending policies

that result in differing qualities of education for persons residing in different

geographic locations may constitute discrimination under the Covenant.

Each state party is required, inter alia, to fulfill the right to education, by

facilitating and providing for its realization. Pursuant to these obligations

which India has undertaken by being a signatory to the Covenant, the Union

MHFW and the DHSL shall ensure proper co-ordination so that students

allocated colleges under the central pool seats are not put to hardship in

enrolling once they have been duly allocated their seats. Specifically, the WP(C) 364/2021 8

Union MHFW and the DHSL can consider appointing a nodal officer tasked

with the responsibility of ensuring that students who are duly nominated

under the central pool seats are in fact admitted in their chosen course of

study. Such an officer can serve as a one-point contact for students who may

otherwise face numerous difficulties in securing their admission, even after

they have been allocated the seat. The details of such officer can be widely

publicized on the websites of the aforesaid two authorities. Such an

institutional framework will ensure that students are not left in the lurch due

to lack of help in securing their legitimate admission to the appropriate

course. In this way, it will help remedy the broader problem of which the case

before us is a symptom.

13 We would also like to place on record our appreciation for the fact that Mr

Rupinder Singh Suri and Mr K M Nataraj approached these proceedings on

behalf of the Union of India and the Administration of the Union Territory of

Ladakh in a spirit of dialogue, as opposed to adopting an adversarial

approach.

14 A copy of this order shall be forwarded to the Principals of the LHMC and the

MAMC for compliance. The DHSL shall also forward a copy of this order to all

the concerned institutions, referred to in Annexure A to the Notification dated

19 February 2021, as extracted above, for compliance. WP(C) 364/2021 9

15 The Petitions are accordingly allowed in the above terms.

16 Pending applications, if any, stand disposed of.

….....…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

..…....…........……………….…........J. [M R Shah]

New Delhi;

April 9, 2021 CKB WP(C) 364/2021 10

ITEM NO.32 Court 6 (Video Conferencing) SECTION X

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Writ Petition (Civil) No.364/2021

FARZANA BATOOL Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)

(With appln.(s) for IA No.41283/2021-EX-PARTE AD-INTERIM RELIEF and IA No.41284/2021-EXEMPTION FROM FILING AFFIDAVIT)

WITH W.P.(C) No.375/2021 (X) (With appln.(s) for I.R. and IA No.42464/2021-EX-PARTE AD-INTERIM RELIEF and IA No.42467/2021-EXEMPTION FROM FILING AFFIDAVIT)

Date : 09-04-2021 These petitions were called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE M.R. SHAH

For Petitioner(s) Mr. Neeraj Shekhar, AOR Mr. Rohit Kumar Singh, Adv.

For Respondent(s) Mr. K.M. Nataraj, ASG Ms. Sunita Sharma, Adv. Mr. Ranjan Kumar Chaurasia, Adv. Mr. B.V. Balram Das, Adv.

Mr. Rupinder Singh, ASG Mr. Anmol Chandan, Adv. Ms. Priyanka Das, Adv. Mr. P.V. Yogeshwaran, Adv. Mr. G.S. Makker, Adv. WP(C) 364/2021 11

UPON hearing the counsel the Court made the following O R D E R

1 The Writ Petitions are allowed in terms of the signed reportable judgment.

2 Pending applications, if any, stand disposed of.

(CHETAN KUMAR) (R.S. NARAYANAN) A.R.-cum-P.S. Court Master

(Signed Reportable Judgment is placed on the file)