Dr. Shaji Kutty v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH **“C. R.”** THURSDAY, THE 23RD DAY OF OCTOBER 2014/1ST KARTHIKA, 1936 WA.No. 1484 of 2014 ( ) IN WP(C).22363/2014 -----------------------------------------------------AGAINST THE JUDGMENT IN WP(C) 22363/2014 of HIGH COURT OF KERALA DATED 10-10-2014 ---------- APPELLANT/PETITIONER IN THE WPC ----------------------------------------- DR.SHAJI KUTTY, AGED 47 YEARS, S/O.R.KRISHNANKUTTY, MEDICAL OFFICER GOVERNMENT HOMOEO DISPENSARY, SEETHATHODE PATHANAMTHITTA DISTRICT, RESIIDNG AT SHAHANA, MUKKOLA MULLOOR P.O., VIZHINJAM, THIRUVANANTHAPURAM. BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH RESPONDENTS/RESPONDENTS IN THE WPC ------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY HEALTH AND FAMILY WELFARE (J) DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. THE COMMISSIONER OF ENTRANCE EXAMINATIONS 5TH FLOOR, UPPER ZONE, HOUSING BOARD BUILDINGS SANTHINAGAR, THIRUVANANTHAPURAM - 695 001. 3. THE PRINCIPAL AND CONTROLLING OFFICER DEPARTMENT OF HOMOEOPATHIC MEDICAL EDUCATION GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, IRANIMUTTOM THIRUVANANTHAPURAM - 695 009. 4. THE DIRECTOR OF HOMOEOPATHY HOMOEOPATHY DIRECTORATE FORT P.O. THIRUVANANTHAPURAM - 695 003 5. THE DISTRICT MEDICAL OFFICER (HOMOEO), REVENUE TOWERS, ADOOR, PATHANAMTHITTA DISTRICT. 689692 6. DR.E.K.SHEENA MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY NEW MAHI, KANNUR. 670 003 BY SR. GOVERNMENT PLEADER SRI.P.I.DAVIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOTTATHIL B. RADHAKRISHNAN & BABU MATHEW P. JOSEPH, JJ.** ------------------------------------------------ W. A. No.1484 of 2014 **“C. R.”** -----------------------------------------------Dated this the 23[rd] day of October, 2014 ## **JUDGMENT** ## **Thottathil B. Radhakrishnan, J.** Heard learned counsel for the appellant and the learned Government Pleader. 2. The writ petitioner is the appellant. He aspires for admission to Post Graduate Degree course in Homoeopathy for the year 2014-15. Ext.P2 is the prospectus. It prescribes that candidates otherwise eligible for admission should not be more than 45 years of age as on the first day of January, 2014. Relaxation up to a maximum of five years is granted in case of SC/ST candidates and to teachers of Homoeopathy Medical Colleges. The appellant is employed in the Government service and belongs to the category which has one seat reserved for doctors who have served in the rural areas. They are called the rural service candidates. Reservation is provided for as per clause 5.5 of the prospectus. The relaxation of age limit by five years as per W. A. No.1484 of 2014 -2- clause 4.b is available only to teachers of Homoeopathy Medical Colleges apart from SC/ST candidates. The appellant, who is now aged more than 45 years, challenges the term of the prospectus fixing 45 years as on 01-01-2014 as the upper age limit. The learned single Judge dismissed that plea. 3. Learned counsel appearing for the appellant argued that the restriction of the age limit as 45 years is an infraction of fundamental rights. That apart, it is argued that the State could not have done it by an executive action since executive power is co-existence with legislative power and there is no legislation in this State akin to the Kerala Medical Officers' Admission To Post Graduate Courses Under Service Quota Act, 2008 which relates to Post Graduate Courses in allopathic system of medicines. It is also argued that there is no rationale in restricting the relaxation to teachers of Homoeopathy Medical Colleges while refusing such relaxation to rural service candidates. Reference was made to the Full Bench decision of this Court in **Saurabh Jain v. State of Kerala [2011(1) KLT 888]** to point out -3- W. A. No.1484 of 2014 that merely because the candidate has applied in terms of the prospectus, there is no question of estoppel building up against him. Reference was made to **Bishambhar Dayal Chandra Mohan v. State of U.P. [(1982) 1 SCC 39]** to say that discrimination may work out on the basis of the fact situation in hand. The decision of this Court in **K.A.Babu and Ors. v. State of Kerala & Ors. [1987 (1) KLT 730]** and that of the Orissa High Court in **Ashok Kumar Mishra v. State of Orissa and Ors. (AIR 2012 Ori. 153)** were referred to point out that exclusion from stream of education by fixing a cut-off limit, as to age, is unconstitutional. 4. At the outset, we may say that the decision of this Court in relation to the legal education and that of the Orissa High Curt in relation to education in pharmacy are all matters relating to admission at entry levels. Apart from that, they do not answer any issue touching any need based reservation which the executive Government may make while issuing the prospectus. Those decisions do not have any bearing to the case in hand. 5. Examination of Ext.P2 prospectus would show that W. A. No.1484 of 2014 -4- 45 years of age limit is the fixed criterion that operates as far as all candidates are concerned. Relaxation is given up to five years for SC/ST candidates. That cannot be impeached because, that is a relaxation given in support of that weaker section of the society. Another relaxation of five years is granted only for teachers of Homoeopathic Medical Colleges. Adverting to the clauses which relate to reservation of seats among teachers working in Homoeopathic Medical Colleges, it can be seen that there are two groups of colleges which fall separately under clauses 5.4.a and 5.4.b of Ext.P2 prospectus. Clause 5.4.a deals with two seats reserved for teachers in the three private Homoeopathic Medical Colleges. 5.4.b deals with three seats for teachers working in Government Homoeopathic Medical Colleges. While making such reservation, the prospectus has also made a choice of the subjects and the zones from which a particular teacher could come for Post Graduate education with the support of such reservation. That is a need based reservation. The teachers of Homoeopathic Medical Colleges, Government and private, are taken as a homogeneous group for the -5- W. A. No.1484 of 2014 purpose of relaxation of age limit. That is only in furtherance of the need based reservation made for teachers of Homoeopathic Medical Colleges. That is not basically a reservation in favour of somebody, but it is a reservation having regard to the need of the institutions, and such reservation will be guided by the policy of the Government in that regard. In their wisdom, the competent authority would not have provided any age relaxation for the rural service candidates. That again, is a matter of policy. Not only that, if one were to examine clause 5.5 of the prospectus, it would show that the prospects of future availability in service is also a concern addressed through that clause. 6. Though the learned counsel for the appellant makes reference to Ext.P9 whereby the condition was relaxed for a particular candidate in 2013, that is not decisive for judicial interference with a rule of reservation prescribing a particular outer limit as to age for refusal to grant any relaxation to any particular group. The fixation of outer limit of age for entry to Post Graduate Degree courses can never -6- W. A. No.1484 of 2014 be considered as an exclusion from education which will enable a person to carry on with an avocation, profession or trade. Hence, there is no question of deprivation of fundamental rights in terms of the Constitution of India, in the case in hand. 7. For the aforesaid reasons, we do not find any infirmity in the impugned judgment of the learned single Judge. This appeal, therefore, fails. In the result, this writ appeal is dismissed. Sd/- **THOTTATHIL B. RADHAKRISHNAN JUDGE** Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE W. A. No.1484 of 2014 -7-