Dr. Girish P.V. and Dr. Pandya Tejas Satish Kumar v. State of Kerala, Director of Medical Education, Commissioner of Entrance Examinations 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. 15551 of 2013 (T)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **1. DR.GIRISH P.V.,S/O. P.VEEVANNA,AGED 40 YEARS, NO. 4103, SHUSHRUTH,5TH C MAIN, OBALAPPA GARDEN, YADIYUR,BANGALORE-70.** **2. DR. PANDYA TEJAS SATISH KUMAR, 2-GULAB VATIKA, SHRI KHANBHALAR KRUPA,** **KALAWAD ROAD, RAJKOT-GUJARAT.** **BY ADVS.DR.GEORGE ABRAHAM** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** **2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM.PIN-695 001** **3. THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SHANTI NAGAR, THIRUVANANTHAPURAM.PIN-695 001** - ***ADDL. R4 & R5 IMPLEADED** - ***R4. DR.THOMAS PUDUKADAN,AGED 30 YEARS,** - **S/O.P.D.THOMAS, 92,NEHRU NAGAR, THRISSUR - 680 006.** - ***R5. JITHIN V.T., AGED 30 YEARS, S/O.V.M.THANKARAJ, VELIYATH HOUSE,NORTH ADUVASSERY, SOUTH ADUVASSERY P.O., ALUVA,ERNAKULAM -683 578.** - ***ADDL. R4 & R5 ARE IMPLEADED AS PER ORDER DATED 30.07.2013 IN I.A.NO.10444/2013** **R1 TO R3 BY GOVERNMENT PLEADER SRI.ROSHAN D. ALEXANDER R4 & R5 BY ADV. SRI.KALEESWARAM RAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31-07-2013,ALONG WITH WP(C)NO.15594/2013 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 15551 of 2013 (T) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT P1TRUE COPY OF THE PROSPECTS FOR ADMISSION TO SUPER SPECIALIST MEDICAL COURSES IN KERALA, 2013 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2TRUE COPY OF NOTIFICATION ISSUED BY THE 3RD RESPONDENT FOR ENTRANCE EXAMINATION FOR ADMISSION TO POST GRADUATE SUPER SPECIALITY COURSES IN KERALA 2013.** **EXHIBIT P3TRUE COPY OF THE M.D.DEGREE CERTIFICATE ISSUED TO THE 1ST PETITIONER BY FROM THE KLE UNIVERSITY IN THE YEAR 2011.** **EXHIBIT P4A TRUE COPY OF THE DEGREE CERTIFICATE ISSUED TO THE 2ND PETITIONER BY SAURASHTRA UNIVERSITY.** **EXHIBIT P5TRUE COPY OF THE M.D.DEGREE CERTIFICATE ISSUED BY SAURASHTRA UINIVERSITY TO THE 2ND PETITIONER.** ## **RESPONDENT(S)' EXHIBITS:** ## **NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** ......................................................................... **Dated this the 31[st] July, 2013** ## **J U D G M E N T** The petitioners in all these cases, who hail from different States outside Kerala, seek for admission to _**Medical Post Graduate Super Speciality Courses 2013**_ in this State. The main challenge is against the _**Clause 3.1.1 and 3.1.2**_ of the relevant Prospectus and the relevant 'Notification' to the extent it imposes _**Nativity of Kerala**_ as the eligibility condition for admission to the Medical PG Super Speciality Courses 2013, contending that it is unconstitutional for having provided 100% reservation.For convenience, reference is mainly made to the pleadings and proceedings as given in W.P.(C)No.15594 of 2013. 2. The arguments on behalf of the petitioners were led by Mr. N.N. Sugunapalan, the learned Sr. Counsel appearing for the petitioner in W.P.(C)No.16065 of 2013, supported by Dr. George Abraham for the petitioners in W.P.(C)Nos.15551/2013, 15669/2013 and 15890 of 2013 and by Mr. M.Shaju Purushothaman for the petitioners in W.P.(C)No.15594 of 2013 . **2** ## **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** **3.** Heard Mr. Kaleeswaram Raj, who appears for the additional party respondents in the concerned writ petitions as well as the learned Goverment Pleader appearing for the State/Departmental authorities as well. 4. In view of the specific contention of the petitioners that the issue stands covered in favour of the petitioners, by virtue of the law declared by the Apex Court and also by this Court holding that _**100% reservation was objectionable**_ , interim orders came to be passed in the concerned cases, permitting the petitioners to submit applications and they were permitted to participate in the Common Entrance Examination, on a provisional basis and subject to the result of the writ petitions. It is pointed out by the learned Counsel for the petitioners that, pursuant to the interim order, they have participated in the Entrance Examination, but their results have been withheld. The learned Counsel points out that the law stands declared by the Apex Court, as per the decision reported in _**Saurabh Chaudri vs. Union of India [**_ **(2003)11 SCC 146],** virtually in full support of the petitioners followed by the verdict passed by a ## **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** **3** Division Bench of this Court in **2011 (2) KLT 646 (Saurabh Jain vs. State of Kerala)** . 5. When a similar Notification was issued earlier in the year 2011, incorporating a similar clause, which was intercepted by this Court and the law was affirmed by a Division Bench of this Court, as per the decision cited supra ( **2011 (2) KLT 646 (Saurabh Jain vs. State of Kerala).** The finding of the learned Single Judge was affirmed by the Bench, following the decision rendered by the Apex Court in _**Saurabh Chaudri vs. Union of India [**_ **(2003)11 SCC 146],** with the conclusion as given in paragraph '5', in the following lines: _"5. In view of the foregoing discussions, observations and findings, we conclude our findings as follows:_ _i) The 100% reservation provided in the prospectus through the preference given to applicants from Kerala is declared arbitrary and unconstitutional. However, in view of the admissions given under interim orders in the Writ Appeals and the commencement of the course six months back, neither the judgment of the learned_ **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** **4** _Single Judge nor this judgment of ours will affect the validity of the admissions given._ _ii) If the Medical Council of India does not provide for centralised selection for admissions to Post-graduate Super Speciality Courses in Medical Science from next academic year onwards, then the State and the Directorate of Medical Education will have to frame fresh prospectus providing only reasonable reservation to Kerala students in line with reservation provided to local students in other States and so far as students hailing from States where Keralites get equal opportunity along with them for admissions are concerned, they should be treated at par with Keralites for selection._ 6. Inspite of setting aside the relevant Clause and declaring the law as above, the respondents incorporated exactly similar clause in respect of the next academic year as well, which was the subject matter of challenge before this Court in W.P.(C)No. 13051 of 2012. After meticulous analysis of the facts and figures and the law declared by the Apex Court in _**Dr. Pradeep Jain and others vs. Union of India and others**_ [(1984) 3 SCC ## **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** **5** 654], _**Saurabh Chaudri vs. Union of India**_ [(2003)11 SCC 146], and by a Division Bench of this Court in **Saurabh Jain vs. State of Kerala** [2011 (2) KLT 646], the Court held that the stipulation for 100% reservation in the prospectus through preferene given to the applicants from Kerala is arbitrary and unconstitutional. A copy of the said decision has been produced as **Ext.P7** in W.P.(C)No.15594 of 2013. 7. Mr. Kaleeswaram Raj, the learned Counsel for the Additional party respondents submits that no Court has set aside the relevant Clause in the prospectus and as such, Clause **3.1.1.** stands. Unless the relevant Clause in the prospectus is varied or modified, there cannot be any interference with the selection. It is also pointed out that a similar ban exists in several other States as well and that, there cannot be any variation without amending the prospectus. Reliance is sought to be placed on the decisions of the Apex Court in _**Parmender Kumar vs. State of Haryana**_ [ **(2012)1 Supreme Court Cases 177** -paragraphs 29 and 30] and in _**P.V. Indiresan (2) vs. Union of India**_ [ **(2011) 8 SCC 441** - paragraphs 44 and 45]. This is sought to be **6** ## **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** rebutted by the learned Counsel for the petitioners pointing out that such ban is in existence only in Rajasthan and Gujarat and that the adverse circumstances are to be challenged by the aggrieved party by way of appropriate proceedings before the appropriate Court. 8. After hearing, this Court finds that the decisions cited by the learned Counsel for the Addl. Party respondents do not come to their rescue, in view of the glaring difference of context and the factual scenario. On the other hand, declaration of law is very much there, as discernible from the verdict passed by the Apex Court in **Saurabh Chaudri vs. Union of India** [(2003)11 SCC 146] under the Head ' _Conclusion'_ which reads as follows: _“Conclusions :_ _1)In the case of Central educational institutions and other institutions of excellence in the country the judicial thinking has veered around the dominant idea of national interest with its limiting effect on the constitutional prescription of reservations. The result is that in the case of these institutions the scope for reservations is minimal._ **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** **7** _2) As regards the feasibility of constitutional reservations at the level of super-specialities, the position is that the judiciary has adopted the dominant norm, i.e., "the higher the level of the speciality the lesser the role of reservation". At the level of super-specialities the rule of "equal chance for equal marks" dominates. This view equally applies to all super-speciality institutions._ _3) As regards the scope of reservation of seats in educational institutions affiliated and recognised by State Universities, the constitutional prescription of reservation of 50% of the available seats has to be respected and enforced._ _4) The institutional preference should be limited to 50% and the rest being left for open competition based purely on merits on an AllIndia basis._ _5) As regards private non-minority educational institutions distinction between Government aided and unaided institutions. While Government/State can prescribe guidelines as to the process of selection and admission of students, the Government/State while issuing guidelines has to take into consideration the constitutional mandate of_ **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** **8** _the requirement of protective discrimination in matters of reservation of seats as ordained by the decisional law in the country. Accordingly, the extent of reservation in no case can exceed 50% of the seats. The inter se merit may be assessed on the basis of a common All India Entrance Test or on the basis of marks at the level of qualifying examination._ _6) The position with respect to minority aided institutions is that they are bound by the requirement of constitutional reservation along with other regulatory controls. However, the right to admit students of their choice being part of the right of religious and linguistic minorities, to establish and administer educational institutions of their choice, the managements of these educational institutions can reserve seats to a reasonable extent not necessarily 50% as laid down in Stephens College case. Out of the seats left after the deduction of management quota, the State can require the observance of the requirement of Constitutional reservation._ _7) As regards the unaided institutions, they have a large measure of autonomy even in matters of admission of students as they are not bound by the constraints of the demands_ **9** ## **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** _of Art. 29(2). Nor are they bound by the constraints of the obligatory requirements of Constitutional reservation._ 9. Similar declaration is there in **Saurabh Jain vs. State of Kerala** [ **2011 (2) KLT 646** ] rendered by the Division Bench of this Court, as borne by paragraph '5' ( already extracted herein before). Placing reliance on the above decisions, still further declaration has been made by a learned Judge of this Court in **Ext.P7 judgment in W.P.(C) 13051 of 2012** ( produced in W.P.(C)No.15594 of 2013) as well, as referred to hereinbefore. 10. A feeble attempt is made from the part of the learned Government Pleader as well, to sustain the course and events, which does not have any legal or factual footing, in view of the binding judicial precedents, as mentioned above. 11. In the above circumstance, this Court finds that the petitioners are entitled to succeed. Accordingly, it is declared that Clauses **3.1.1 and 3.1.2** of Ext.P3 Prospectus in W.P.(C) **10** ## **W.P.(C)No. 15551, 15594 15669, 15890 & 16065 OF 2013** No.15594 of 2013 and Clauses **2(a)(i) and (ii)** of Ext.P4 Notification therein, are not liable to be enforced in the case of the petitioners. Accordingly, there will be a direction to the concerned respondents to declare the result of the petitioners and give admissions to the petitioners based on their rank in the examination for admission to _**Medical Post Graduate Super Speciality Courses-2013,**_ forthwith, subject to satisfaction of all other requirements, completing the proceedings within the specified time. The writ petitions are allowed. No cost. ## **P.R.RAMACHANDRA MENON JUDGE** lk