Kum Varsha S (minor) v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941 WP(C).No.17558 OF 2019(T)** ## **- PETITIONER :** **KUM.VARSHA S (MINOR), AGED 17 YEARS, REPRESENTED BY FATHER AND GUARDIAN M.K.MURALEEDHARAN, AGED 58 YEARS, KAUSTHUBHAM, CHENGANNUR, PIRALASSERY P.O., PIN - 689 122, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.T.N.JAYADEVAN SRI.D.JOTHIKUMAR SRI.J.VISHNU DEVARAJ SRI.JOHN ALWIN K.** ## **- RESPONDENTS :** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE DIRECTOR OF MEDICAL EDUCATION,**| ||**DIRECTORATE OF MEDICAL EDUCATION,**| ||**MEDICAL COLLEGE P.O.,**| ||**THIRUVANANTHAPURAM - 695 011.**| |**3**|**THE COMMISSIONER FOR ENTRANCE EXAMINATION**| ||**5TH FLOOR, HOUSING BOARD BUILDINGS,**| ||**SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001.**| |**4**|**THE SECRETARY TO GOVERNMENT,**| ||**SCHEDULED CASTE DEVELOPMENT DEPARTMENT,**| ||**SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**| |**5**|**MEDICAL COUNCIL OF INDIA**| ||**REPRESENTED BY SECRETARY, POCKET 14,**| ||**STREET 8, DHARAKA PHASE 1, NEW DELHI - 110 001.**| |**6**|**KERALA UNIVERSITY OF HEALTH SCIENCES,**| ||**REPRESENTED BY REGISTRAR,**| ||**MULANKUNNATHKAVU, MEDICAL COLLEGE P.O.,**| ||**PIN - 680 596, THRISSUR.**| WP(C).No.17558 OF 2019(T) -: 2 :- **7 KERALA STATE COMMISSION FOR SCHEDULED CASTES AND SCHEDULED TRIBES, REPRESENTED BY REGISTRAR, AYYANKALI BHAVAN, VELLAYAMBALAM, TRIVANDRUM - 695 003.** **BY SRI.V.MANU, SR.GOVERNMENT PLEADER BY SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA BY SRI.P.SREEKUMAR, SC, KERALA UTY.HEALTH AND ALLIED SCIENCE BY ADV. SMT.MARY BENJAMIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-02-2020, THE COURT ON 04-03-2020 DELIVERED THE FOLLOWING:** WP(C).No.17558 OF 2019(T) -: 3 :- ## **JUDGMENT** ## **Dated this the 4th day of March 2020** This writ petition is filed seeking the following reliefs :- - “i. Call for the records leading to set apart MBBS/BDS seats to Government of India Nominees and Special Reservations in Government Medical Colleges other than Government Medical College Palakkad and filling up of NRI seats up to 15% in Private Self Financing Medical Colleges other than the Minority Educational Institutions referred to in clause (1) of Article 30 of the Constitution of India and quash the same to the extent to which they dilute the 10% reservation of Scheduled Castes and Scheduled Tribes; by issuance of a writ of certiorari or any other appropriate writ, order or direction. - ii. Declare that the Scheduled Castes and Scheduled Tribe candidates are legally entitled to 10% of the total number of seats in the course for admission for all professional courses where the allotment of the entire seats are carried out by common counselling by the 3[rd] respondent. - iii. Direct the respondents to modify the prospectus effectively that the reservation of 10% for Scheduled Castes and Scheduled Tribes to be strictly complied with in respect of the entire seats available in the course as a whole without excluding the other reservation categories. - iv. Declare that the 1[st] and 3[rd] respondents have no jurisdiction to reduce the percentage of reservation for Scheduled Castes and Scheduled Tribe candidates from 10% (8% for SC and 2% for STs) for admission to professional courses where the entire seats are allotted by the 3[rd] respondent.” WP(C).No.17558 OF 2019(T) -: 4 :- 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The contention of the petitioner is that the petitioner belongs to a Scheduled Caste community and has qualified in the National Eligibility cum Entrance Examination (for short 'NEET'), 2019 with category rank No.6424. It is stated that by Ext.P6 order dated 6.8.1971, the quota for Scheduled Caste candidates in professional courses has been fixed at 10% (8% for Scheduled Caste and 2% for Scheduled Tribes). It is submitted that this Court, by Ext.P7 judgment, had recorded the submission that the 10% quota for SC/ST candidates as provided in Ext.P6 Government Order is being strictly followed in the allotment of students in professional colleges. It is stated that by Ext.P8 Government Order dated 29.6.2010, approving the prospectus for Medical Post Graduate admission in 2010-'11 as well, the quota has been directed to be maintained and the prospectus was modified as per Ext.P8. It is stated that in Ext.P9 judgment, this Court considered the issue and held that reservations have to be specifically maintained and the number of seats available are to be computed on the basis of the total number of seats available and the reservation is to be carried out accordingly. It is contended that Clause 4.1.5 of Ext.P11 prospectus for the year 2019 specified that WP(C).No.17558 OF 2019(T) -: 5 :- mandatory reservations are being provided only as against the number of seats as computed after reducing All India Quota for MBBS/BDS, reservation for nominees, reservation for persons with disabilities and other special reservations. It is the contention of the petitioner that there are more than 1455 seats now available including the seats set apart for economically backward candidates and that if 10% of the total number of seats is taken, at least 145 seats would have to be reserved for Scheduled Caste and Scheduled Tribe candidates while the number of seats actually reserved is only 84 for Scheduled Castes and 23 for Scheduled Tribes, the total of which would come to 107. It is stated that in the self financing colleges also, the total number of seats available are liable to be taken into account and that the reservation is to be applied against those seats. It is contended that the petitioner would be entitled to admission in the Government Medical College, Thiruvananthapuram or Calicut if the appropriate reservations are properly granted. 4. The learned counsel for the petitioner relies on a decision of the Apex Court in **J.S. Yadav** v. **State of Uttar Pradesh and another** [(2011) 6 SCC 570] in support of the contention that where the vested right exists in a Scheduled Caste candidate for reservation, such right can be taken away only if the law WP(C).No.17558 OF 2019(T) -: 6 :- specifically or by necessary implication provides for such a course. The decision in **S. Krishna Sradha** v. **The State of Andhra Pradesh and ors.** in Civil Appeal No.1081/2017 decided on 13.12.2019 is also relied upon to contend that where the admission is denied and there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously, appropriate relief is liable to be granted to the candidate. 5. A counter affidavit has been placed on record by the 3[rd] respondent. It is submitted by the learned Government Pleader that there is no challenge as against the specific provisions contained in the prospectus and the petitioner has sought only declarations without challenging the specific provision. It is further contended that the petitioner has already obtained admission in a self financing medical college under the reservation quota and as such, she has no subsisting grievance at all. It is stated that no fees need to be paid by the petitioner since professional education to reserved category candidates even in self financing colleges is fully subsidised by the Government. It is stated that the reservation provided for medical education are to be carried out as against the seats available with the Government for allotment both in Government WP(C).No.17558 OF 2019(T) -: 7 :- ## Colleges as well as in Self Financing Colleges. It is stated at paragraphs 6 and 7 of the counter affidavit as follows :- “6. In Self Financing medical colleges, 15% of seats are reserved for Non Resident Indians Quota. Majority of the Self Financing Medical Colleges are minority institutions, who can demand that all the seats in their institutions must be filled with candidates of the minority which established the institution. These minority institutions have agreed to set apart a portion of seats for allotment as per the State reservation policy and general merit. After 15% NRI seats 60% seats reserved as minority quota, remaining 25% seats have been thus agreed to be set apart by such minority institutions. 7. In this year, out of the total sanctioned seats of 1400 seats in Govt. medical colleges, only 1051 seats are available for allotment after earmarking/ seats for Special reservation/ nominee/ All India Quota and in Self Financing medical colleges, 889 seats only are available for allotment after earmarking seats for NRI/ minority quota. The details of seats allotted to Scheduled caste (SC) and other categories to MBBS course in Govt. Medical Colleges for the academic year 2019 is as follows :- ## **(a) Government Colleges** |1|State Merit (SM)|633| |---|---|---| |2|Ezhava (EZ) - 9%|94| |3|Muslim (MU) - 8%|84| |4|Other Backward Hindu (BH) - 3%|31| |5|Latin Catholic and Anglo Indian (LA) - 3%|31| |6|Dheevara and related communities (DV) -<br>2%|21| |7|Viswakarma and related communities (VK)<br>- 2%|21| |8|Kusavan and related communities (KN) -<br>1%|10| |9|Other Backward Christian (BX) - 1%|10| WP(C).No.17558 OF 2019(T) -: 8 :- |10|Kudumbi (KU) - 1%|11| |---|---|---| |11|Scheduled Castes (SC) - 8%|154 (84 +70 in<br>Palakkad<br>Medical College)| |12|Scheduled Tribes (ST) - 2%|23 (21 + 2 in<br>Palakkad<br>Medical College)| ||**TOTAL**|**1123 (1051 +**<br>**72**in Palakkad<br>Medical College)| |**The details of seats allotted to Self Financing Medical**<br>**Colleges**|**The details of seats allotted to Self Financing Medical**<br>**Colleges**|**The details of seats allotted to Self Financing Medical**<br>**Colleges**| |---|---|---| |1|State Merit (SM)|532| |2|Ezhava (EZ) - 9%|80| |3|Muslim (MU) - 8%|71| |4|Other Backward Hindu (BH) - 3%|27| |5|Latin Catholic and Anglo Indian (LA) -<br>3%|27| |6|Dheevara and related communities (DV)<br>- 2%|18| |7|Viswakarma and related communities<br>(VK) - 2%|18| |8|Kusavan and related communities (KN) -<br>1%|9| |9|Other Backward Christian (BX) - 1%|9| |10|Kudumbi (KU) - 1%|9| |11|Scheduled Castes (SC) - 8%|71| |12|Scheduled Tribes (ST) - 2%|18| ||**TOTAL**|**889**| It is stated that the petitioner was fully aware of the fact that the All India Quota seats and other reserved category of seats including the nominee seats are not available with the Commissioner of Entrance Examinations for conducting allotment and that the quota can be applied only with regard to such seats WP(C).No.17558 OF 2019(T) -: 9 :- which are available for allotment with the Commissioner. It is stated that a reading of Ext.P7 judgment would itself make it clear that the finding therein is with regard to a situation where there was no provision either in the reservation policy of the State or in the prospectus of the University for exclusion of seats before the reservation was to be applied. 6. Relying on a decision of the Bombay High Court in **Vrushali** v. **State of Maharashtra** [1996 (5) Bom. C.R. 614], it was contended that the reservation was to be exercised only in respect of seats available for allotment by the State. In paragraph 20 of Ext.P9 judgment it was found that the Maharashtra Rules which were construed in **Vrushali's case** provided for application of reservations on the seats available for disposal with the competent authority. It was held that neither in the reservation policy of the State of Kerala nor in the prospectus of the University is such an exclusion provided and exclusion, if any, will have to be provided by the State and not by the University. It was in the above factual situation that the writ petition was allowed directing the application of the reservation as against the total number of seats. 7. In the instant case, Clause 4.1.5 of Ext.P11 prospectus specifies the method by which reservation is to be applied. It is the WP(C).No.17558 OF 2019(T) -: 10 :- specific case of the respondents that the All India Quota seats and the nominee seats are not available with the State Government to make allotments even in the centralised allotment process. The provision in the prospectus is therefore to apply to the seats available with the allotting authority, that is, the 2[nd] respondent herein. In spite of the petitioner being aware of how the reservation is being worked out, I notice that there is no challenge raised as against Ext.P11 or the provision with regard to reservation as contained therein. As rightly pointed out by the learned Government Pleader, the judgments of the Apex Court on the point would indicate that the reservation quota provided by the State Government can only be implemented in respect of the seats available with the State Government for allotment. In the above view of the matter, the reliefs sought for in this writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/29.2.2020 WP(C).No.17558 OF 2019(T) ## -: 11 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED BY THE THAHASILDAR CHENGANNUR, ALAPPUZHA DISTRICT.** - **EXHIBIT P2 TRUE COPY OF THE SECONDARY SCHOOL EXAMINATION CERTIFICATE.** - **EXHIBIT P3 TRUE COPY OF THE ALL INDIA SENIOR SCHOOL CERTIFICATE EXAMINATION.** - **EXHIBIT P4 TRUE COPY OF THE NEET (2019) SCORE CARD. EXHIBIT P5 COMMISSIONER FOR ENTRANCE EXAMINATION CONFIRMATION PAGE- KEAM 2019.** - **EXHIBIT P6 TRUE COPY OF G.O. MS.131/71/EDN DATED 6.8.1971. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 8.4.2016 OF THIS HONBLE COURT IN WPC NO.13474 OF 2010.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.G.O.(RT) 2530/2010/H &FWD DATED 29.6.2010 ISSUED BY THE H & FWD.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 13.10.2014 OF THIS HONBLE COURT IN WPC NO.17721 OF 2014** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN WPC NO.27190 OF 2018 DATED 10.8.2018.** - **EXHIBIT P11 TRUE COPY OF THE EXTRACT OF PROSPECTUS KEAM 2019.** - **EXHIBIT P12 TRUE COPY OF RELEVANT EXTRACT OF EXTRAORDINARY GAZETTE NOTIFICATION, DATED 16.9.2017 THE KERALA MEDICAL EDUCATION (REGULATION AND CONTROL OF ADMISSION TO PRIVATE MEDICAL EDUCATIONAL INSTITUTIONS), ACT, 2017** - **EXHIBIT P13 TRUE COPY OF THE EXTRACT OF PROSPECTUS KEAM 2018** - **EXHIBIT P14 TRUE COPY OF THE ORDER NO.T.AI-4060/2018/C.E.E. DATED 7.9.2018. MBBS ADMISSION 2018 NUMBER OF SEATS ALLOTTED FOR SCHEDULED CASTE IN GOVT. MEDICAL COLLEGES, AND SELF FINANCING COLLEGES UNDER RESERVATION.** - **EXHIBIT P15 TRUE COPY OF ALLOTMENT MEMO DATED 08.7.2019** - **EXHIBIT P16 TRUE COPY OF ALLOTMENT MEMO DATED 31.7.2019** WP(C).No.17558 OF 2019(T) ## -: 12 :- - **EXHIBIT P17 LAST RANK DETAILS ALLOTMENT DATED 31.7.2019** - **EXHIBIT P18 TRUE COPY OF NOTIFICATION NO-CEE/5454/2018 KEAM2019-TA1 DATED 02.8.2019** - **EXHIBIT P15 TRUE COPY OF G.O.(Ms)No.52/2019/GAD DATED 14.03.2019 REGARDING 10% RESERVATION FOR EWSs ISSUED BY GENERAL ADMINISTRATION (CO-ORDINATION) DEPARTMENT.** - **EXHIBIT P16 TRUE COPY OF LETTER No.A1/3250/2019/CEE/RTI DATED 08.08.2019 ISSUED BY THE 3RD RESPONDENT UNDER RTI ACT 2005.** - **EXHIBIT P17 TRUE COPY OF G.O.(Rt)No.22/2019/HEDN DATED 01.02.2019 ISSUED BY THE HEALTH & FAMILY WELFARE (S) DEPARTMENT REGARDING THE EARMARKING OF 15% FOR ADMISSION OF STUDENTS TO UG COURSES FOR NONKERALITES.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R3(a) A TRUE PHOTOCOPY OF GO(P) NO.208/66 EDN DATED 02/05/1966.** //TRUE COPY// P.A. TO JUDGE WP(C).No.17558 OF 2019(T) -: 13 :-