Muhammed Ismail E.E. and Asiya M. (Minor) v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** # **FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934** ## **WP(C).No. 2131 of 2013 (N)** ## **-----------------------------------** ## **PETITIONER(S):** **-----------------------** **1. MUHAMMED ISMAIL E.E. AGED 49 YEARS, S/O. IBRAHIMKUTTY, ELANKATHIL VEETIL, ELIPPAKKULAM P.O., VALLIKUNNAM, MAVELIKKARA, ALAPPUZHA, PIN-690 503.** **2. ASIYA M. (MINOR)** - **D/O.MUHAMMED ISMAIL E.E., ELANKATHI VEETIL, ELIPPAKKULAM P.O., VALLIKUNNAM, MAVELIKKARA, ALAPPUZHA, PIN-690 503 REPRESENTED BY GUARDIAN 1ST PETITIONER.** ## **BY ADVS.SRI.R.RAMADAS SRI.T.SIVADASAN** ## **RESPONDENT(S):** **-------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001.** **2. THE COMMISSIONER OF ENTRANCE EXAMINATIONS, GOVERNMET OF KERALA, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN 695001.** **3. DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM, PIN-695 001.** **4. DISTRICT COLLECTOR, ALAPPUZHA, PIN-688 010.** **BY GOVERNMENT PLEADER SRI.ROSHEN D ALEXANDER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MJL** ## **WP(C).No. 2131 of 2013 (N)** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1: TRUE COPY OF IDENTITY CARD NO.M2-68636/79 DHS F.W.O.P.29/79. EXT.P2: TRUE COPY OF PROCEEDINGS NO.H4-7060/89 DATED 27/5/1989 ISSUED BY THE 4TH RESPONDENT. EXT.P3: TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 2ND PETITIONER BY HER SCHOOL AUTHORITIES. EXT.P4: TRUE COPY OF ANNEXURE VII(4) AT PAGE 75 OF THE PROSPECTUS FOR THE YEAR 2012. EXT.P5: TRUE COPY OF THE REPRESENTATION DATED 22-12-2011 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA. EXT.P6: TRUE COPY OF THE RELEVANT PAGE OF THE PROSPECTUS ISSUED BY THE GOVT. OF U.T.PUDUCHERRY. EXT.P7: TRUE COPY OF THE COMMUNICATION DATED 28/8/09 RECEIVED BY THE PETITIONER FROM THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE DIRECTORATE OF MEDICAL EDUCATION CHENNAI. EXT.P8: TRUE COPY OF THE COMMUNICATION NO.A1 2908/06/CEE/LDS, DATED 11/9/2006 ISSUED BY R2. EXT.P8(a): TRUE COPY OF THE LIST FORWARDED ALONG WITH EXT.P8. EXT.P9: TRUE COPY OF THE COMMUNICATION NO.69/JSP/CM/2012 DATED 18/1/2012 FROM THE OFFICE OF THE HON'BLE CHIEF MINISTER OF KERALA. EXT.P10: TRUE COPY OF THE COMMUNICATION NO.14469/G3/12/H.EDN. DATED 16/5/2012 RECEIVED BY THE PETITIONER. EXT.P11: TRUE COPY OF THE COMMUNICATION NO.A1/2014/2012/EEC/RTI DATED 28/06/2012 RECEIVED BY THE PETITIONER. EXT.P12: TRUE COPY OF THE COMMUNICATION NO.A1/5389/2012/EEC/RTI DATED 29/12/2012 RECEIVED BY THE PETITIONER. EXT.P13: TRUE COPY OF ANNEXURE VII(4) AT PAGE. 74 OF THE PROSPECTUS PUBLISHED BY THE 2ND RESPONDENT FOR ADMISSION TO THE PROFESSIONAL DEGREE COURSES IN THE YEAR 2013. EXT.P14: TRUE COPY OF REPRESENTATION DATED 12/1/13 SUBMITTED BY THE 1ST PETITIONER BEFORE THE CHIEF MINISTER OF KERALA.** ## **MJL** **WP(C).No. 2131 of 2013 (N)** **EXT.P15: TRUE COPY OF THE REPRESENTATION DATED 12/1/13 SUBMITTED BY THE 1ST PETITIONER BEFORE R1.** **EXT.P16: TRUE COPY OF THE REPRESENTATION DATED 12/1/13 SUBMITTED BY THE 1ST PETITIONER BEFORE R2.** **RESPONDENTS' EXHIBITS: NIL** ## **/TRUE COPY/** **P A TO JUDGE** **MJL** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No. 2131 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of February, 2013 ## **JUDGMENT** The grievance of the petitioner as projected in the writ petition is that no proper consideration has been given to the request made by the petitioners, particularly the first petitioner, who is stated as the guardian of the second petitioner, in respect of the claim for providing reservation to the children/grand children of Freedom Fighters for admission to professional courses. 2. The sequence of events as narrated in the writ petition shows that, the father of the first petitioner was a Freedom Fighter and the second petitioner is the daughter of the first petitioner i.e. the grand child of the Freedom Fighter as mentioned above. Earlier, considering the great service rendered by the Freedom Fighter to the Nation, provision for admissions to be made, was incorporated in the prospectus of Professional colleges so as to facilitate reservation to the children of Freedom Fighters to a specified extent. This however W.P.(C)No.2131/2013 2 came to be subsequently deleted and as on date, such benefit is not being extended to anybody. 3. The first petitioner filed Ext.P5 representation before the Honourable Chief Minister of Kerala expressing his grievance in not reserving seats for children/grandchildren of freedom fighters in professional colleges, also pointing out that such privileges are prevalent in the neighbouring States, which is stated as forwarded to the first respondent and is stated to be still pending. The petitioner was informed of the same vide Ext.P9 dated 18.01.2012. Ext.P10 information, dated 16.05.2012 procured by the petitioner under the RTI Act reveals that a report has been called for, from the Commissioner for Entrance Examination and Director of Technical Education in respect of the grievance projected by the petitioner in Ext.P5. The first petitioner has further filed Ext.P15 representation before first respondent seeking to restore the reservation quota in respect of the children of Freedom Fighters and to extent the benefit to the grand children as well so as to meet the desired objective. The prayer in the writ petition is mainly to direct the respondents 1 and 2 to consider the W.P.(C)No.2131/2013 3 same and to extend the relief sought for. 4. The second respondent has filed a detailed statement pointing out that the prospectus issued by the Commissioner for Entrance Examination was approved by the Government as per G.O. (Ms) No.644/2012/H.Edn. dated 18/12/2012 . The recommendation made by the Prospectus Revamp Committee is on the basis of the policy decision taken by the Government. The second respondent points out that the said Committee had a meeting held on 21/11/2012 and after a detailed discussion, four different clauses, which were already in existence in the prospectus, were decided to be removed. The clauses decided to be deleted are as given below : _“i) Reservation of seats for nominees from Government of Puducherry for MBBS course_ _ii) Reservation of seats for children of freedom fighers for B.Sc.Hon ( Forestry course)_ _iii) Reservation of seats for Ceylon/Burma Repatriates for B.Sc. Hon (Ag.) and B.V.Sc. & A.H.course._ _iv) SC/ST/OEC candidates will have to pay caution deposit.”_ 5. It is also stated that previously when such reservation was W.P.(C)No.2131/2013 4 provided to the children of Freedom Fighters, no candidate had availed the benefit in the last ten years ie. from 2003-2012 and it was accordingly that a conscious decision was taken to delete the relevant clause in respect of the concerned courses. It is also stated that as the schedule has already been fixed, interference, if at all made, at this stage will be quite detrimental to the course and career of the students concerned, thus it will be much adverse to the public interest. 6. The learned counsel for the petitioners however points out that Ext.P5 and the subsequent representations preferred by the petitioners, was never a matter of consideration before the Government at any point of time. The learned counsel also submits that nonavailability of candidates for such reserved seat in the earlier years could be due to the fact that the clause restricted eligibility to the children of the Freedom Fighters only and it is rather impossible to find any such eligible candidate at this point of time as Freedom Fighters fought for the freedom of the country more than 6 to 7 decades ago and their children must have grown old or rather must have passed the age for availing admissions to Professional Colleges. The learned counsel W.P.(C)No.2131/2013 5 further submits that, he is now confining the relief sought for considering the claim in respect of future years and to take appropriate decision in this regard. 7. It is true that the scope of intervention to be made by this Court in such matters is rather limited, more so, when it relates to a matter of policy. What should be the terms of policy and in what way this should be implemented is a matter to be decided by the Government depending upon the facts and circumstances and the points to be considered. This is the law declared by this Court as per the decision reported in **2010(1) SCC 477 ( Gulshan Prakash (Dr.) and** . **others v. State of Haryana and others)** But the policy need not be static always and the policy of this year need not be the same for the next year. It is always open for the formulators of the policy to take appropriate decision and to give effect to the same so as to meet the desired objective. 8. In the said circumstances, whether the benefit hitherto extended to the Freedom Fighters by providing reservation to their children in professional courses should be extended widening the zone W.P.(C)No.2131/2013 6 of consideration so as to include grand children as well, more so in view of the nonavailability of such candidates during the last decades is a matter to be considered by the Government. The submission made by the learned counsel for the petitioner in this regard as to the benefit being extended by the neighbouring States particularly, the State of Puducherry and the State of Tamil Nadu may also be a relevant factor to be looked into, as discernible from Exts.P6 and P7. In the above circumstances, while declining to express anything on merits in this regard, this Court directs the first respondent to consider Ext.P5 followed by Ext.P15 representation preferred by the first petitioner and pass appropriate orders in accordance with law, at the earliest, at any rate within three months from the date of receipt of a copy of this judgment. ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)No.2131/2013 7 W.P.(C)No.2131/2013 8