HC refuses interim relief to 2 ‘abandoned’ girls seeking medical seats under ‘orphan’ quota

The Bombay High Court refused to grant interim relief to two “abandoned” young girls seeking directive to the state government to consider granting them reservation in the 1 per cent parallel reservation quota for “orphans” for admissions to undergraduate medical courses.

The two girls had sought reservation pending issuance of “orphan” certificates to them.

The court said if the said relief was granted and if at the final hearing of the plea the court had decided against the petitioners pending their pleas, same would amount to deprive some other orphans of the seats in medical courses in which petitioners were seeking admission.

A division bench of Justices Sunil B Shukre and Firdosh P Pooniwalla was on September 14 hearing a plea by The Nest India Foundation, argued by advocate Abhinav Chandrachud.

The foundation had challenged the Government Resolution (GR) of April 6, 2023, by which the state government had introduced 1 per cent horizontal reservation for orphans.

The court said that it had to decide whether the GR discriminated between institutional and non-institutional categories.

The last issue before it was whether the provisions of the Juvenile Justice Act (JJ Act), which does not deal with reservation at all, can be used as an aid to widen the scope of the word “orphan” in the said Government Resolution.

Chandrachud argued that the impugned GR discriminated between the orphans and abandoned children and the object of the GR was irrational.

He said the word “orphan” in GR should be read to include an abandoned child.

Chandrachud argued that both orphans and abandoned children are in need of protection and discrimination between the two was against the Article 14 (Equality before law) of Constitution. He said that the JJ Act does not make distinction between the abandoned and orphan child.

Referring to “abandoned child” certificates issued by Child Welfare Committee (CWC) to the two girls under JJ Act, Chandrachud argued that CWC had also considered them as orphans.

The petitioner claimed the GR to be unconstitutional and till the plea was finally heard, sought directive to state authorities to consider the two girls in the quota under the GR.

Otherwise, they would be deprived of the opportunity to take admission in the medical course and become doctors.

Advocate General Birendra Saraf representing the state government pointed out that the petitioner was not an institution registered under the Woman and Child Department or recognised by any other state department.

He also said it was not possible for respondent authorities to verify whether the said two young girls were actually orphans as a letter by mother of one of the two girls showed that she was admitted to the petitioner institution only for obtaining education.

AG Saraf also responded that the reason why the state, in its wisdom, had not included an “abandoned child” in the said GR was that such inclusion was “capable of gross abuse and misuse” and policy decisions of the government ought not be interfered with.

He added that provisions of JJ Act, which does not deal with reservation at all, cannot be used as an aid to widen the scope of the word “orphan” in the said GR and no relief be granted until the issues are finally decided by the court.

The bench noted the larger issues before it would require detailed examination at the stage of final hearing and law on the subjects has to be considered. Therefore, the interim relief cannot be granted as giving the same would amount to granting final reliefs at the interim stage, which is not permissible, it held.