Dr. Bijumon L. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 31ST DAY OF JULY 2013/9TH SRAVANA, 1935** ## **WP(C).No. 18735 of 2013 (N)** **----------------------------------------** **PETITIONER(S):** **-----------------------** **DR.BIJUMON. L. ASSISTANT INSURANCE MEDICAL OFFICER, E.S.I.HOSPITAL, PATTIYOOR, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.T.R.RAJAN SRI.K.SANIL KUMAR** **RESPONDENT(S): -------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.** **2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN 695 001.** ## **3. THE DIRECTOR OF INSURANCE MEDICAL SERVICES, THYCAUD, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI.ROSHAN D. ALEXANDER GP WITH AG** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-07-2013, ALONG WITH WPC. 18867/2013 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 18735 of 2013 (N)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 10/6/2013 ISSUED BY THE VILLAGE OFFICER, ALAPPAD.** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 8/6/2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR ADMISSION TO THE POST GRADUATE MEDICAL (DEGREE/DIPLOMA) COURSES, KERALA -2013.** - **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE (CONTAINING CLAUSE NO. VI(IV) OF THE PROSPECTUS FOR ADMISSION TO THE POST GRADUATE MEDICAL (DEGREE/DIPLOMA)COURSES, KERALA-2013.** - **EXHIBIT P4 TRUE COPY OF THE RESULT OF THE PETITIONER IN THE ENTRANCE EXAMINATION CONDUCTED FOR ADMISSION TO THE POST GRADUATE MEDICAL (DEGREE/DIOPLOMA) COURSES, KERALA-2013.** - **EXHIBIT P4(A) TRUE COPY OF THE FINAL RANK LIST PUBLISHED BY THE 3RD RESPONDENT BASED ON SENIORITY.** - **EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER DATED 26/9/2009.** - **EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 28//5/2013 OF THIS HONOURABLE COURT IN WPC NO.13330/2013.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** ## **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. **W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013** ......................................................................... **Dated this the 31[st] July, 2013** ## **J U D G M E N T** The petitioners in all these cases challenge the adverse stipulation in the Prospectus for admission to the _**Medical Post Graduate Degree/Diploma Courses 2013**_ issued by the third respondent, whereby a restriction has been imposed under _**Clause VI (iv)**_ to the effect that the candidates **claiming reservation under the 'SEBC' quota should invariably produce both community and income certificates obtained** **from the Revenue authorities concerned and that** those whose annual family income is above 4.5 lakhs are not eligible for reservation or any other relaxation. The petitioners also seek for the benefit of the interim order passed by this Court on 28.05.2013 in W.P.(C)No.13330 of 2013, directing the candidature of the petitioner therein to be considered without any regard to the ceiling on the family income, on a provisional basis and subject to the result of the writ petition in respect of ## _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **2** 'SEBC' quota earmarked for the 'In-service candidates', in view of the admitted entry level salary of Rs.40,000/- per month, taking the annual income of any serving Doctor above Rs.4.5 lakhs. 2. The relief sought for is vehemently opposed from the part of the respondents; mainly on the ground of 'delay and laches' since the prospectus was published months' ago on 19.04.2013 and that the petitioners did not have any such case earlier. The Rank list has been finalised 'thrice', lastly on the basis of the judgment rendered by a learned Judge of this Court on 24.07.2013 in _**W.P.(C)No. 16697 of 2013**_ and connected cases, whereby the concerned petitioners, who were given a placement in the list, based on the relaxation of the qualification/eligibility criteria as modified by the Central Government, came to be excluded in view of declaration of law by this Court. It is pointed out that the same does not have any connection or relationship with the 'fixation of ceiling' of income in respect of **'SEBC** ' quota projected now. 3. The learned Counsel appearing for the petitioners ## _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **3** pointed out that they had submitted applications specifically mentioning their caste status as 'OBC' eligible to have reservation under the 'SEBC' quota. It is also pointed out that they had submitted necessary Community Certificate and in some cases, Non-Creamy Layer certificates as well, along with the applications **.** The correctness and sustainability of the 'Clause' stipulating the Income Certificate, instead of 'Non Creamy Layer Certificate' is sought to be challenged in many of the cases. 4. With regard to the course and events, it is to be noted that all the petitioners herein are 'In-service candidates' and their claim is in respect of the 'Service quota' earmarked under the State Allotment. Originally, the eligibility criteria were fixed by the Central Government with reference to the _**'percentile' system (**_ which denotes that the person has scored higher than the given extent of the total **NEET PG Test Takers)** showing the percentile rank, which is the percentage of the candidates that fall below a given score. As per the relevant norms, there are three categories , viz. _(1) General_ ## _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **4** - _(2) Scheduled Caste/Scheduled Tribes/Socially and Educationally Backward Classes and_ - _(3) Physically Disabled_ In respect of the three groups, the passing criteria were fixed at 50th percentile, 40th percentile and 45th percentile respectively. When the result of NEET PG-2013 was published on 17.05.2013, sufficient number of SC/ST/SEBC candidates could not get an entry, when the Chairman of the National Commission for Scheduled Castes/Scheduled Tribes addressed the Central Government to make necessary relaxation, pursuant to which, the _**'percentile**_ ' norm was changed as _**'percentage**_ ' system (changing 50th, 40th and 45th percentile to 50%, 40% and 45% respectively). Writ petitions came to be filed from both the sides challenging the relaxation and also seeking to implement the same. 5. A learned Judge of this Court considered a batch of writ petitions, (W.P(C)No.16697 of 2013 and others) and held that the _recommendation was only in respect of SC/ST categories, with reference to 'non availability' of candidates_ and there was ## _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **5** no such request in respect of 'General category' or the 'Physically Disabled category'. As such, there was no rationale to have the eligibility norm reduced by the Central Government and in the said circumstance, the law was declared, whereby the change of norm in respect of General category/Physically Disabled category in respect of State Quota seats was intercepted. 6. Pursuant to the above judgment, the 'list' was again reworked, as a result of which, the petitioners, whose names were included in the round, after relaxation of the norms by the Central Government, came to be deleted from the list, which made them to approach this Court, by filing these writ petitions, now raising a plea with reference to _**income ceiling**_ , seeking for the benefit of the interim order passed by this Court in W.P.(C) No.13330 of 2013, being members of the 'SEBC' category. 7. With regard to the disputed Clause, the interim order passed by this Court on **28.05.2013** in WP.(C)No **.13330 of 2013** is relevant and hence the same is reproduced below for the convenience of reference: ## _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **6** _**”** Admit. Urgent notice._ _With regard to the interim relief sought for, to process the application of the petitioner for admission to Medical P.G. Degree/Diploma without imposing any condition as to the annual family income, the petitioner seeks to assert that the stipulation with reference to the annual income was incorporated after the process of selection by the National Board of Examinations by way of NEET P.G., which was conducted in November, 2012 wherein the petitioner has become successful._ _2. The subject matter of challenge pertains to the selection in respect of the 'in-service candidates'. The petitioner is working as a Doctor in the Taluk Hospital , Shasthamkotta and is having 8 years of service. The stipulation in clause No.VI (iv) in Ext.P5 prospectus approved by the State Government insists that the candidates claiming reservation under 'SEBC Quota' should invariably produce Community and Income Certificates obtained from the concerned Revenue authorities and that the persons having annual income of more than Rs.4.5 lakhs are not eligible for reservation_ _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **7** _or any other relaxation._ _3. Mr. Mathai M. Paikeday, the learned Senior Counsel appearing for the petitioner submits that the said stipulation is rather onerous and does not have any nexus to the object, if any and that it does not have any basis in relation to the actual facts and figures._ _4. The learned Government Pleader appearing for the respondents submits on instructions, that the entry level salary in respect of the Doctors in the Medical Education Service is Rs. 60,000/-, while that of the Doctors in the Health Service Department is Rs.40,000/- per month. This naturally shows that the annual income of a Doctor at the entry level in the Health Department itself is 4.8 lakhs. The petitioner is a Doctor working in the Taluk Hospital for nearly 8 years, who would have earned several increments by this time. Even a entry Doctor having an entry level salary of Rs.40,000/- will stand let down by the stipulation now fixed. If the ceiling as now appears is let to stand, no Doctor, even at the entry level who is working in the Health Service Department or in the Medical_ ## _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **8** _Education Service could be considered for Medical P.G. Admissions. In the said circumstance, this Court finds that, there is considerable force in the case projected from the part of the petitioner._ _Accordingly, there will be an interim order as prayed for, which shall be subject to the result of the writ petition. The respondents are directed to file counter affidavit."_ **8.** It is conceded from the part of the respondent/State that they have not preferred any appeal against the said verdict. However, in the course of subsequent proceedings, some of the contesting respondents made a submission in W.P.(C)No.13330 of 2013, seeking for modification of the order, so as to fix some ceiling on the annual income, lest the benefit of reservation should be claimed by undeserving hands. Considering the said request, the interim order was modified as per the common order dated 26.07.2013 in W.P.(C) 13330 of 2013 and connected cases, in the following terms as evident from paragraphs '3' and '4', which are extracted below: _”3. The contesting respondents seek_ _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **9** _modification contending that a blanket order of stay would enable even wealthy candidates to get reservation. They pray for placing a ceiling on annual income to claim reservation under Socially and Educationally Backward Classes._ _4. Interest of justice would be met by directing the petitioners to produce also a non-creamy layer certificate in order to claim reservation under the Socially and Educationally Backward Classes. Those petitioners who have not already produced the same shall do it without delay lest they are disentitled for such reservation.”_ 9. The learned Government Pleader submits that the last date for completing the admission procedure, as fixed by the Apex Court, is 31.07.2013 and that, in view of the judgment passed by this Court in W.P.(C)No.16697 of 2013 and connected cases on 24.07.2013, the 'list' stands corrected and the admission procedure has been finalised, effecting allotments on the last Saturday. It is also pointed out that, the displacement of the petitioners is because of the declaration of law by this ## _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **10** Court and it has no connection at all with regard to their Income/Community status, which claim was not sought to be established in view of the higher ceiling prescribed in the Prospectus and for not having had any such challenge earlier . 10. It is seen that the Prospectus was published containing the disputed Clause on 19.04.2013 and admittedly, the petitioners did not have any such case earlier. The petitioners did not find it fit to approach this Court even at the time when the petitioner in W.P.(C)No.13330 of 2013 approached this Court and obtained the interim order ( which is now sought to be relied on) in May, 2013. The petitioners contend that they did not have any need, necessity or occasion to have approached this Court, as they were included in the list prepared earlier. But, the fact remains that the petitioners were never included in the ' ' Original list , when the eligibility criteria were reckoned with reference to ' _**percentile'**_ system; but got included only when it was watered down to ' _**percentag**_ e' system. The said exercise has been found to be wrong and improper by this Court, as per the judgment dated 24.07.2013 in WP.(C)No.16697 of 2013 ## _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **11** and connected case; and as a natural consequence, the petitioners came to be deleted, when the 'third' and final list was prepared. In short, the petitioners did never choose to raise any claim before this Court earlier, with reference to the 'now disputed Clause' stipulating the income ceiling for 'SEBC' quota and were virtually _**sitting on fence**_ till this time. In other words, it has to be presumed that they chose to waive the benefits flowing from their status as 'SEBC', if any, presumably in view of their higher income and only on finding that their inclusion pursuant to relaxation of the qualification came to be interfered by this Court, as per the judgment dated 24.07.2013 as aforesaid, that they chose to approach this Court, setting up a new plea/case. 11. In the above circumstance, this Court finds that any interference, at this stage can only shatter the equilibrium, which will result in undesirable consequences; more so since the Prospectus was published as early as on 19.04.2013 and there was no challenge against the said Clause till date. This Court also finds supports from the decision rendered by the Apex Court ## _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **12** in this regard, as reported in **AIR 1970 SC 470 (Rabindra Nath vs. Union of India )** to the effect that persons, who are simply resting on arm chair without any regard to their rights and liberties, are not entitled to have the discretionary jurisdiction of this Court to be exercised in their favour. Interference is declined and all these writ petitions are dismissed, as devoid of any merit. ## **P.R.RAMACHANDRA MENON JUDGE** lk _**W.P.(C)No. 18735, 18774, 18830, 18841, 18846, 18860, 18861 & 18867 OF 2013**_ **13**