High Court of KeralaDivision BenchW.A.No.2129/2018, 344/2019, 403/2019 allowed; W...
Muslim Educational Society, Kozhikode & MES Medical College, Perinthalmanna v. State of Kerala & Others
Case / Petition Number:W.A.No.2125/2018; W.A.No.2129/2018; W.A.No.344/2019; W.A.No.403/2019; W.P.(C).No.39587/2018
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- Chief Justice Hrishikesh Roy
- Justice A.K. Jayasankaran Nambiar
- Judgment Date
- 2019-09-02
- Court Decision / Holding
- Appeals allowed in part. W.A.No.2129/2018, W.A.No.344/2019, and W.A.No.403/2019 set aside the Single Judge’s order and uphold the appellate reasoning; W.A.No.2125/2018 is disposed by upholding the Single Judge’s reasoning in W.P.(C).No.23744/2018. W.P.(C).No.39587/2018 is allowed, directing the respondent college to grant fee concession to SEBC students based on the Court’s judgment in W.A.No.2125/2018. Overall, the concession within SEBC must be allocated according to inter se merit in the admission process, rather than purely by income-based selection within SEBC.
- Final Disposition
- W.A.No.2129/2018, 344/2019, 403/2019 allowed; W.A.No.2125/2018 dismissed (upholding the single judge’s reasoning in W.P.(C).23744/2018); W.P.(C).No.39587/2018 allowed directing SEBC fee concession based on the present judgment; overall, the concession for SEBC students must be based on inter se merit within SEBC as per admission process.
Parties to the Case
Appellants / Petitioners
- Muslim Educational Society, Kozhikode
- MES Medical College, Perinthalmanna
- Hany Mahmood.C
- Syed Mohammed
- Aleef Nadeem I.S
- Fathima Shifna.K
Respondents
- State of Kerala
- The Commissioner for Entrance Examinations
- Kerala University of Health Sciences
- Secretary to Government, Department of Higher Education
- Principal Secretary to Government, Department of Health
- P.K. Das Institute of Medical Science, Vaniyamkulam
- Hashid Mon.V S/o Saidhalavi (as respondent in related writs)
- Noure en P.K.
- Nisar P.M.
- Muhammed Shafi P.K.
- Raneesh Mundodan
Legal Representation & Advocates
Counsels for Petitioners
- • Sri Babu Karukapadath
- • Smt. M.A. Vaheeda Babu
- • Sri K.M. Faisal (Kalamassery)
- • Smt. Amrin Fathima
- • Smt. V.R. Lakshmi
- • Sri Avinash P Raveendran
- • Sri J. Vishnu Devarajan
Counsels for Respondents
- • Sri Tek Chand, Sr. Government Pleader
- • Sri Roshen D. Alexander
- • Sri Tina Alex Thomas
- • Sri Babu Karukapadath
- • Sri N.N. Sugunapalan (Sr)
- • Sri S. Sujin
- • Sri P. Sreekumar
- • Sri George Jacob (Jose)
- • Sri Roshan Jacob
- • Sri Sreenath D
- • Sri Sreevalsan V
Case Synopsis & Summary
The Kerala High Court case deals with the interpretation of a contractual clause in seat-sharing and fee-fixation agreements between the State Government and self-financing medical colleges. The clause obliges the colleges to extend fee concessions to certain identified categories of students (SEBC, BPL, etc.) allotted under Government quotas. The Government’s Admissions Prospectus regulates admission processes, and the Government argues that once a student is identified as SEBC, their concession should be based on inter se merit determined during the admission process. The petitioners (MES and related college entities) contend the concession should be rooted in the students’ actual income within the SEBC category, not purely by merit. The Single Judge had held that rank in the entrance examination cannot be the sole criterion for concession and directed reconsideration using income-based criteria. The Division Bench reinterprets the contractual clause, holding that the concession within the SEBC group should be allocated to the more meritorious among those eligible, i.e., using inter se merit. It cites E.V. Chinnaiah v. State of A.P. and Others (2005) and Amla R. v. Union of India (2019) to justify merit-based selection within a class. The result is a mixed disposition: setting aside the single judge’s order in some appeals and upholding it in others, with directions to grant SEBC fee concessions in line with the Court’s reasoning.
Provisions of Law Cited
Constitution of India, Article 341
Legal Doctrines & Maxims
- Principle of contract interpretation: the intention of the parties is gathered from express terms; if terms are ambiguous, resort to external evidence and interpret to align with the contract's purpose and not produce unconstitutional results.
- Merit-based allocation within identified categories: within a homogeneous group (SEBC), select beneficiaries based on inter se merit (entrance examination ranking) to uphold the object of the concession.
- Distinct treatment of sub-class income criteria: income-based criteria are applicable where explicitly defined (e.g., BPL), but not to override inter se merit within SEBC when identifying beneficiaries for concession.
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioners contend that the fee concession clause in the seat-sharing and fee fixation agreement obliges self-financing colleges to extend concessional rates to SEBC students identified for admission. They argue the concession should consider the actual income of students within SEBC, not simply their inter se rank, to ensure the benefit reaches the truly needy within the category. They emphasize that the concession’s objective is to facilitate access to medical education by those with limited means, referencing the need to protect weaker sections within SEBC.
Contentions of Respondents
The respondents argue that the concession is tied to SEBC categorization and should be allocated based on inter se merit within the SEBC group as per the admission process. They contend that income-based selection within SEBC would undermine the merit-based admission framework and that the government’s orders (such as Ext. P9) rely on the inter se ranking within the SEBC group for concession, preserving the integrity of the seat-sharing arrangement.
Cited Precedents (2)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| E.V. Chinnaiah v. State of A.P. and Others | [(2005) 1 SCC 394] | Positive | Used to support the view that caste groups once classified within the Presidential List form a class; any division within that class based on other criteria would amount to tinkering with the Presidential List. |
| Amla R. v. Union of India and Others | [2019 (3) KHC 540] | Positive | Cited to illustrate that authorities cannot engage in comparative judgments for appointments; emphasizes the principle that merit-based selection within a homogeneous group should be adhered to and not subject to inappropriate comparisons. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**MONDAY, THE 02ND DAY OF SEPTEMBER 2019/11TH BHADRA, 1941**
## **W.A.No.2125 OF 2018**
**AGAINST THE JUDGMENT DATED 6.9.2018 IN W.P(C) 23744/2018(P) OF HIGH COURT OF KERALA**
## **APPELLANTS/PETITIONERS:**
- **1 MUSLIM EDUCATIONAL SOCIETY, KOZHIKODE, REPRESENTED BY ITS GENERAL SECRETARY, PROF.P.O.J. LABBA.**
- **2 M.E.S. MEDICAL COLLEGE, PERINTHALMANNA, PALACHODE.P.O., MALAPPURAM DISTRICT, REP. BY ITS DIRECTOR, DR.P.A. FAZAL FAFOOR.**
- **3 HANY MAHMOOD.C, AGED 21 YEARS S/O.C.M ABUBACKER, CHENGATTU HOUSE, ULLANAM NORTH.P.O., PARAPPANGADY, MALAPPURAM DISTRICT.**
**BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.M.FAISAL (KALAMASSERY) SMT.AMRIN FATHIMA SMT.V.R.LAKSHMI SRI.AVINASH P RAVEENDRAN SRI.J.VISHNU DEVARAJ**
## **RESPONDENTS/RESPONDENTS:**
- **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.**
- **2 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.**
**3 SYED MOHAMMED SHAH, S/O.MOHAMMED SHAH, IIND YEAR MBBS STUDENT, MES MEDICAL COLLEGE, PERINTHALMANNA, PALACHODE.P.O., MALAPPURAM DISTRICT, PIN-679 338.**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 2 : W.P.(C).No.39587/18**
**4 ALEEF NADEEM I.S., S/O.IBRAHIM K.K., II[ND] YEAR MBBS STUDENT, MES MEDICAL COLLEGE, PERINTHALMANNA, PALACHODE.P.O., MALAPPURAM DISTRICT – 679 338. 5 FATHIMA SHIFNA K., D/O.ZAINUDEEN K., II[ND] YEAR MBBS STUDENT, MES MEDICAL COLLEGE, PERINTHALMANNA, PALACHODE.P.O., MALAPPURAM DISTRICT – 679 338.**
**R1-R2 BY SRI.TEK CHAND, SR. GOVERNMENT PLEADER R3-5 BY ADV. SRI.ROSHEN.D.ALEXANDER R3-5 BY ADV. SMT.TINA ALEX THOMAS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27.08.2019 ALONG WITH W.A.NO.2129/2018, W.A.NOS.344 & 403/2019 & W.P.(C).NO.39587/2018, THE COURT ON 02.09.2019 DELIVERED THE FOLLOWING:**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 3 : W.P.(C).No.39587/18**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**MONDAY, THE 02ND DAY OF SEPTEMBER 2019/11TH BHADRA, 1941**
## **W.A.No.2129 OF 2018**
**AGAINST THE JUDGMENT DATED 6.8.2018 IN W.P(C).NO.31793/2016(Y) OF HIGH COURT OF KERALA**
## **APPELLANTS/RESPONDENTS 6 TO 11:**
- **1 NILOOFER SANAH AGED 23 YEARS STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPPALAM, PALAKKAD-679 101.**
- **2 JUBEENA V.A. STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPPALAM, PALAKKAD-679 101.**
- **3 SHAMLA.P., STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPPALAM, PALAKKAD-679 101.**
- **4 RISHIKA.M.S., STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPPALAM, PALAKKAD-679 101.**
- **5 FIDHGA SHAHR.T., STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPPALAM, PALAKKAD-679 101.**
- **6 AISWARYA UNNI, STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPPALAM, PALAKKAD-679 101. BY ADV.SRI.N.N.SUGUNAPALAN(SR) BY ADV. SRI.S.SUJIN**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 4 : W.P.(C).No.39587/18**
## **RESPONDENTS/PETITIONERS 1 TO 5 & RESPONDENTS 1 TO 5:**
- **1 HASHID MON.V S/O.SAIDALAVI, OTTAPPILACKAL HOUSE, THRIPPANCHI, PALAKKAD P.O., MALAPPURAM DISTRICT -673 641.**
- **2 NOUREEN.P.K., D/O. ABDULLA, AGED 21 YEARS, PARAVARKUNDIL HOUSE, MOORKKANAD, KOLATHOOR VIA, MALAPPURAM DISTRICT 679 338**
- **3 NISAR.P.M., S/O.MOIDEENKUTTY, PARAKKATTIL HOUSE, KOHIKKOTIRI P.O., PATTMABI VIA, PALAKKAD**
- **4 MUHAMMED SHAFI. P.K., S/O.ABDUL MAJEED, PUTHUSSERKANDY, KARIYAD P., THALASSERI (VIA), KANNUR.**
- **5 RANEESH MUNDODAN, S/O.ABDUL RASAK, MOORKAND, URANGATTIRI P.O., AREACODE, MALAPPURAM 673 639**
- **6 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001**
- **7 THE KERALA UNIVERSITY OF HEALTH SCIENCE,REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., TRICHUR – 685 096**
- **8 THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001**
- **9 THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH, SECRETARIAT, THIRUVANANTHAPURAM 695 001**
- **10 P.K. DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPPALAM, PALAKKAD – 679 101**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 5 : W.P.(C).No.39587/18**
**R1-5 BY ADV. SRI.T.G.RAJENDRAN**
**R6 & R8 BY SRI.TEK CHAND, SR. GOVERNMENT PLEADER R7 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE**
**R10 BY ADV. SRI.GEORGE JACOB(BY ORDER)**
**R10 BY ADV.SRI.ROSHAN JACOB**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27.08.2019 ALONG WITH W.A.NO.2125/2018, W.A.NOS.344 & 403/2019 & W.P.(C).NO.39587/2018, THE COURT ON 02.09.2019 DELIVERED THE FOLLOWING:**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 6 : W.P.(C).No.39587/18**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**MONDAY, THE 02ND DAY OF SEPTEMBER 2019/11TH BHADRA, 1941**
## **W.A.No.344 OF 2019**
**AGAINST THE JUDGMENT DATED 6.8.2019 IN W.P(C).NO.31793/2016(Y) OF HIGH COURT OF KERALA**
## **APPELLANTS/RESPONDENTS 1, 3 AND 4 IN THE WRIT PETITION:**
- **1 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.**
- **2 THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.**
- **3 THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH, SECRETARIAT, THIRUVANANTHAPURAM-695001.**
**BY SRI.TEK CHAND, SR. GOVERNMENT PLEADER**
**RESPONDENTS/PETITIONERS AND RESPONDENTS 2 AND 5 TO 11 IN THE WRIT PETITION:**
- **1 HASHID MON.V S/O.SAIDALAVI,OTTAPPILACKAL HOUSE,THRIPPANACHI,PALAKKAD.P.O, MALAPPURAM DISTRICT-673 641.**
- **2 NOUREEN.P.K, D/O.ABDULLA,PARAVARUKUNDIL HOUSE, MOORKKANAD,KOLATHOOR VIA,**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 7 : W.P.(C).No.39587/18**
## **MALAPPURAM-679 338.**
- **3 NISAR.P.M, S/O.MOIDEEN KUTTY, PARAKKATTIL HOUSE, KOZHIKKOTTIRI.P.O,PATTAMBI VIA, PALAKKAD.**
- **4 MUHAMED SHAFI.P.O, S/O.ABDUL MAJEED,PUTHUSSERKANDY, KARIYAD.P.O,THALASSERY VIA,KANNUR-673 316.**
- **5 RANEESH MUNDODAN, S/O.ABDU RASAK, MOORKAND, URANGATTIRI.P.O, AREACODE, MALAPPURAM-673 639.**
- **6 KERALA UNIVERSITY OF HEALTH SCIENCE, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE.P.O,TRICHY-685 096.**
- **7 P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPALAM, PALAKKAD-679 101.**
- **8 NILOOFER SANAH, STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPALAM,PALAKKAD-679 101.**
- **9 JUBEENA.V.A, STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPALAM, PALAKKAD-679 101.**
- **10 SHAMLA.P,**
- **STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPALAM,PALAKKAD-679 101.**
- **11 RHISHIKA.M.S, STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPALAM, PALAKKAD-679 101.**
- **12 FIDHGA SHAHR THIRUVANANTHAPURAM, STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCE, VANIYAMKULAM, OTTAPALAM, PALAKKAD-679 101.**
- **13 AISWARYA UNNI, STUDENT OF P.K.DAS INSTITUTE OF MEDICAL SCIENCES, VANIYAMKULAM, OTTAPALAM, PALAKKAD-679 101.**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 8 : W.P.(C).No.39587/18**
**R1-5 BY ADV. T.G.RAJENDRAN(B/O) R6 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE**
**R7 BY ADV. SRI.GEORGE JACOB (JOSE)**
**R7 BY ADV. SRI.ROSHEN JACOB**
**R8-13 BY ADV. SREENATH.D(B/O)**
**R8-13 BY ADV. SREEVALSAN V(B/O)**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27.08.2019 ALONG WITH W.A.NO.2125 & 2129/2018, W.A.NO. 403/2019 & W.P.(C).NO.39587/2018, THE COURT ON 02.09.2019 DELIVERED THE FOLLOWING:**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 9 : W.P.(C).No.39587/18**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**MONDAY, THE 02ND DAY OF SEPTEMBER 2019/11TH BHADRA, 1941**
## **W.A.No.403 OF 2019**
**AGAINST THE JUDGMENT DATED 6.8.2018 IN W.P(C).NO.31801/2016(A) OF HIGH COURT OF KERALA**
## **APPELLANTS/RESPONDENTS 1, 3 & 4 IN THE WRIT PETITION:**
- **1 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.**
- **2 THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.**
- **3 THE PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH, SECRETARIAT, THIRUVANANTHAPURAM-695 001.**
**BY SRI.TEK CHAND, SR. GOVERNMENT PLEADER**
## **RESPONDENTS/PETITIONERS & RESPONDENTS 2 & 5 TO 7 IN THE WRIT PETITION:**
- **1 SHABNAM, D/O.TKM ASHRAF, THOPPIL HOUSE, KARUMATHRA P.O., KADALAYI, THRISSUR-682 013.**
- **2 JABIRA THASNI V.K., D/O.ABDUL LATHEEF V.K., VADAKKE KOTTALATH HOUSE, CHALIYAM P.O., KOZHIKODE 673 301.**
- **3 MINA DILSHA K., D/O.HABEEB SULAIMAN, KOYIKKAL HOUSE, CHEMMAD, THIRURANGADI P.O., MALAPPURAM 676 306.**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 10 : W.P.(C).No.39587/18**
- **4 KERALA UNIVERSITY OF HEALTH SCIENCE, REP.BY ITS REGISTRAR, MEDICAL COLLEGE P.O., THRISSUR.**
- **5 DM WAYANAD INSTITUTE OF MEDICAL SCIENCES, MEPPADI P.O., WAYANAD.**
- **6 BISMI P. FATHIMA, STUDENT OF DM WAYANAD INSTITUTE OF MEDICAL SCIENCES, MEPPADI P.O., WAYANAD.**
- **7 NAVANEETHA R. KARUN, STUDENT OF DM WAYANAD INSTITUTE OF MEDICAL SCIENCES, MEPPADI P.O., WAYANAD.**
**R1-3 BY ADV. T.G.RAJENDRAN(BY ORDER)**
**R4 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE**
- **BY ADV.SRI.GEORGE JACOB FOR R7 BY ADV.SRI.ROSHEN JACOB FOR R7 BY ADV.SRI.R.O.MUHAMED SHEMEEM FOR R6 BY ADV.SRI.THOMAS KURUVILA**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27.08.2019 ALONG WITH W.A.NOS.2125 & 2129/2018, W.A.NO.344/2019 & W.P.(C).NO.39587/2018, THE COURT ON 02.09.2019 DELIVERED THE FOLLOWING:**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 11 : W.P.(C).No.39587/18**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**MONDAY, THE 02ND DAY OF SEPTEMBER 2019/11TH BHADRA, 1941**
**W.P(C).No.39587 OF 2018(W)**
## **PETITIONERS:**
|**1**|**SYED MOHAMMED**|
|---|---|
||**AGED 21 YEARS, S/O.MOHAMMED SHAH,**|
||**PUTHUPARAMBIL HOUSE, THOTTUMUGHAM LANE,**|
||**KANJIRAPPALLY-686507.**|
||**IIND YEAR MBBS STUDENT, MES MEDICAL COLLEGE,**|
||**PERINTHALMANNA, PALACHODE P.O., MALAPPURAM DISTRICT,**|
||**PIN -679 338.**|
|**2**|**ALEEF NADEEM.I.S,**|
||**AGED 21 YEARS, S/O.IBRAHIM.K.K,KANNORAKKANDI HOUSE,**|
||**NOCHADU.P.O,KOZHIKODE-673614.**|
||**IIND YEAR MBBS STUDENT, MES MEDICAL COLLEGE,**|
||**PERINTHALMANNA, PALACHODE.P.O,**|
||**MALAPPURAM DISTRICT,PIN-6793 38.**|
|**3**|**FATHIMA SHIFNA.K**|
||**AGED 21 YEARS, D/O.ZAINUDEEN.K,**|
||**KOTTATHU(HOUSE), PATTIKKADU.P.O,**|
||**MALAPPURAM-679 325.**|
||**IIND YEAR MBBS STUDENT, MES MEDICAL COLLEGE,**|
||**PERINTHALMANNA,PALACHODE.P.O,**|
||**MALAPPURAM DISTRICT,PIN-679 338.**|
||**BY ADVS.SRI.ROSHEN.D.ALEXANDER**|
||**SMT.TINA ALEX THOMAS**|
**RESPONDENTS:**
**1 STATE OF KERALA**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 12 : W.P.(C).No.39587/18**
**REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001.**
- **2 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.**
- **3 M.E.S MEDICAL COLLEGE, PERINTHALMANNA, PALACHODE P.O, MALAPPURAM DISTRICT, REP. BY ITS DIRECTOR, DR. P.A. FAZAL, GAFOOR.**
**BY SRI.TEK CHAND, SR. GOVT. PLEADER BY ADV.SRI.BABU KARUKAPADATH FOR R3**
**THIS WRIT PETITION HAVING BEEN FINALLY HEARD ON 27.08.2019 ALONG WITH W.A.NOS.2125 & 2129/2018 AND W.A.NOS.344 & 403/2019, THE COURT ON 02.09.2019 DELIVERED THE FOLLOWING:**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 13 : W.P.(C).No.39587/18**
**'C.R.'**
## **J U D G M E N T**
## **A.K. Jayasankaran Nambiar, J.**
The issue involved in these cases concerns the interpretation to be placed on a clause in an agreement entered into between self-financing colleges in the State and the Government. The agreement is one entered into for apportionment of seats in the MBBS course in the self-financing colleges between the Government and the management concerned. The particular clause with which we are concerned in these cases is one that obliges the college concerned to extend a fee concession to identified categories of students from among those who have been allotted to said college under the Government Quota.
2. The process of admission of students to the MBBS course offered by various Colleges in the State is regulated by the Prospectus for Admission to Professional Degree Courses published by the State Government for the particular academic year. It is issued from the Office of the Controller for Entrance Examinations. The Prospectus provides for the mode of allotment of students by the Government to seats in Government, Government aided and Private selffinancing medical colleges. The right of the Government to make allotment of
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 14 : W.P.(C).No.39587/18**
students to seats in self-financing medical colleges stems from the Prospectus read with the provisions of the Agreement for seat sharing and fee fixation entered into between the Government and the self-financing college concerned. The allotment of students to the said seats is based purely on merit and from the merit list prepared by the State Government.
3. The fee that is payable by a student who has been allotted a seat by the Government in any College is determined annually by the State Government through the Admissions Supervisory Committee and from the fee so fixed, a further concession can be obtained by students who satisfy the criteria specified for fee concession in the individual agreements entered into between the selffinancing college concerned and the State Government.
4. In these cases we are concerned with the agreements entered into between the State Government and 3 Self-financing medical Colleges viz. P.K.Das Institute of Medical Science, Vaniyamkulam, Ottappalam, Palakkad, MES Medical College, Perinthalmanna, Malappuram District and DM Wayanad Institute of Medical Science, Meppadi, Wayanad. The said agreements contained a clause that obliged the College concerned to offer fee concessions to certain identified categories of students such as SC/ST, BPL and the Socially and Educationally Backward Classes [SEBC]. The said clause reads as follows:
“The Educational Agency agree to collect annual fees at the
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 15 : W.P.(C).No.39587/18**
following concessional rates from the students admitted under the 50% Government merit Quota, during the entire course period.
|a)|Students belonging to BPL/SEBC family<br>as per state Government norms, not<br>exceeding 40% seats of Govt. Merit<br>Quota, [i.e., 14% (7 out of 50 seats) from<br>BPL families and 26% (13 out of 50<br>seats) from SEBC students|Rs.25,000/- per annum|
|---|---|---|
||If there are no sufficient candidates in<br>the BPL category above, candidates with<br>lowest income based on income<br>certificate issued by the competent<br>revenue authority will be considered.||
|b)|Other Candidates including those who<br>have got admission under SC/ST<br>reservation categories not exceeding<br>60% seats of Govt. Merit Quota, [i.e., 8%<br>(4 out of 50 seats) from SC and 2% (1<br>out of 50 seats from ST and 50% (25 out<br>of 50 seats from General Merit]|Rs.2,50,000 per annum.<br>Fee<br>for<br>SC/ST<br>Candidates to be paid<br>by the Government of<br>Kerala.|
5. The Colleges concerned would contend that while the said clause obliges them to extend fee concession to the prescribed percentage of students in any of the specified categories, they are free to identify the students eligible for fee concession based on a criteria that looks to the actual income of the students who fall within the specified category. The stand of the State Government, on the other hand, is that once the students have been identified as falling within a particular category – SEBC in the instant cases – their further entitlement for fee concession has to be based solely on their inter se merit, as was determined in
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 16 : W.P.(C).No.39587/18**
the admission process.
6. W.A.No.2129/2018, W.A.No.344/2019 and W.A.No.403/2019 arise form a common judgment dated 6.8.2018 of a learned Single judge in W.P. (C).Nos.31793/2016 & 31801/2016. W.P.(C).No.31793/2016 was preferred by five students who had secured admission to the MBBS course during the academic year 2015-16 and were allotted seats in the Government quota at the P.K.Das Institute of Medical Science, Ottappalam. They were ranked 1598, 1600, 1603, 1612 and 1616 respectively in the Entrance Examination that year and they all belonged to the SEBC category, as per the norms specified by the State Government. In their writ petition, they impugned the action of the College and Government in identifying students who had secured higher ranks in the entrance exam [R6 – R11] and were allotted to the College under the SEBC category, for the benefit of fee concession. It was their case in the writ petition that inasmuch as the students ranked higher to them in the SEBC category had annual family incomes that were substantially more than that of the petitioners, the petitioners ought to have been granted the benefit of fee concession ignoring their lower rank in the SEBC category and taking note of their weaker financial position. Similar was the case of the three writ petitioners in W.P.(C).No.31801/2016 who had been allotted seats in the DM Wayanad Institute of Medical Sciences. They were aggrieved by a similar identification of respondents 6 & 7 in that writ petition, for the benefit of fee concession.
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 17 : W.P.(C).No.39587/18**
7. The learned Single Judge who heard the matters, found force in the contention of the writ petitioners and held as follows:
“xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxx
9. Once identification of group based on social backwardness is over, all such candidates who form into a class cannot be grouped together as same class for the purpose of fee concession. The fee concession is given not only for the candidates belonging to SEBC but also extended to forward community. That is the reason, fee concession is given to 14% (7 out of 100 seats) for the students of BPL families. The object of fee concession is to enable students to pay tuition fee applicable in Self Financing Institutions. In comparison with Government institutions, Self financing institutions levy higher fee for the courses conducted by them.
10. Unequals within the social groups based on income criteria cannot be treated at par based on the ranks obtained in the entrance examination. Individual income criteria alone need be considered for granting fee concession under economic benefits. Otherwise, those who are better off will push the worse off person to gain such benefits. Thus, I have to conclude that rank obtained in the entrance examination cannot be a criteria at all to confer fee concession benefits. Those who are having lowest income among the group should be given the benefit of fee concession. The Government is directed to reconsider the matter granting benefits in the light of the above within two months. Needless to say all students seeking benefits must be given opportunity of hearing. Impugned orders are set aside.
These writ petitions are disposed of as above.”
8. It is against the said judgment that W.A.No.344/2019 and W.A.No.403/2019 have been preferred by the State Government and W.A.No.2129/2018 by the respondents 6 – 11 in W.P.(C).No.31793/2016.
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 18 : W.P.(C).No.39587/18**
9. W.A.No.2125/2018 is preferred by the MES, Kozhikode aggrieved by the judgment dated 6.9.2018 of another learned Single Judge in W.P. (C).No.23744/2018. The said writ petition was preferred by MES and a student who had secured admission to the MBBS course in the MES Medical College at Perinthalmanna, impugning Ext.P9 order dated 10.11.2017 of the State Government that directed self-financing medical colleges who had entered into agreements with the Government to allow fee concession to students admitted in the SEBC category for the academic year 2016-17 on the basis of their inter se medical ranking in that category, as was done in the previous year. The students who would have benefited from the direction in Ext.P9 order were arrayed as respondents 3 to 5 in the said writ petition. The said students have also separately preferred W.P.(C).No.39587/2018 seeking a direction from this Court to the College to act upon Ext.P9 order of the Government. Before the latter writ petition was filed, however, W.P.(C).No.23744/2018 came to be decided by a learned Single Judge who, after considering the rival submissions, found as follows at paragraph 5 of her judgment:
“xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxx
5. The contentions of the petitioners that financial condition of the family alone should be looked into and that the consideration of merit of the candidate for the purpose of availing fee concession would amount to violation of the rights of the third petitioner, according to me, are pure misconceptions. Admissions to professional courses are generally to be made on the basis of merit. Fee concession is, as is evident from the nomenclature itself, granted to students, who do not have the
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 19 : W.P.(C).No.39587/18**
financial capacity to meet the huge commitment necessary for undertaking professional education at the rates demanded by self-financing colleges. For deciding the eligibility of students for the concessional rates of fees, the orders under challenge provide that their merit is also to be looked into. I find no illegality of any nature in the said prescription. In the absence of any allegation that any student, who is not entitled to the benefit of fee concession, or in other words, who has income exceeding the upper limit prescribed for availing the benefit having been admitted in concessional WP(C) NO.23744/2018 :-6-: seats, I am of the opinion that the challenge raised is completely misconceived. In any view of the matter, petitioners 1 and 2 have no manner of right to challenge the orders. The challenge raised by the third petitioner is devoid of merits.
The writ petition therefore fails and is accordingly dismissed.”
10. The appellants in W.A.No.2125/2018, as already noted, assail the aforesaid judgment of the learned Single Judge. As the issue was pending before us in the appeal, we directed the Registry to post W.P.(C).No.39587/2018 also before us for consideration along with the appeal.
11. We have heard the learned senior counsel Sri.N.N.Sugunapalan for the appellants in W.A.No.2129/2018, Sri.Babu Karukapadath, the learned counsel for the appellants in W.A.No.2125/2018, Sri.Roshen D. Alexander, the learned counsel for the petitioners in W.P.(C).No.39587/2018 and respondent Nos.3 – 5 in W.A.No.2125/2018, the learned Government Pleader Sri.Tek Chand for the appellants in W.A.Nos.344/2019 and 403/2019 and Sri.P.Sreekumar for the respondents in W.A.No.403/2019.
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 20 : W.P.(C).No.39587/18**
12. On a consideration of the rival submissions, we find that as per the Prospectus issued by the State Government to regulate the admission process to the MBBS course in the State of Kerala, there is no obligation on any selffinancing medical college in the State to offer fee concessions to any student who had been allotted to the said college against the quota of seats earmarked for the Government. The said obligation of the self-financing institutions concerned stems only from the relevant clause in the seat sharing and fee fixation agreement entered into by them with the Government. In that sense, the obligation to offer fee concession to the specified categories of students is purely contractual in nature. Consequently, we have to interpret the clause in the agreement on the principles of interpretation of contracts. When we look at the issue thus, we have to remind ourselves that the intention of the parties to the contract have to be gathered from the express words used in the contract and it is only if the words used are ambiguous that the need arises to look outside the contract, to gather the intention of the parties. Also, in that event, if there are two views possible we have to choose that view which closely accords with the purpose of the contract and which does not occasion an illegal or unconstitutional result.
13. When we analyse the relevant clause in the contract, we find that the self-financing institutions in the instant case had agreed to offer the concessional fee of Rs.25,000/- p.a. to 26% of the students allotted to their institution under
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 21 : W.P.(C).No.39587/18**
the SEBC category. The fee concession clause in the agreement is silent as regards the manner in which the 26% of students chosen for fee concession will be identified from among those who fall under the said category. The object of the clause being to provide fee concession to deserving students for pursuit of their medical education, the question that arises is whether the choice should be of those whose financial position is worse or of those who have proven themselves as more meritorious, academically so to speak. In our view, had the choice to be made from among a group of students who were categorised on criteria other than their respective financial position, the institutions would have been justified in identifying those with lesser family income for the conferment of the benefit of fee concession. In the instant cases, however, the choice to be made is from among a group of students whose very categorisation as SEBC involved an assessment of their financial position since they were obliged to produce non-creamy layer certificates, over and above the certificates showing their social and educational backwardness, for categorisation under the SEBC category. It is also relevant to note that a fee concession based purely on income criteria is also separately offered to students who belong to BPL families. Thus the agreement itself indicates those categories of students in respect of whom the income criteria is to be applied for identifying the beneficiaries for fee concession. The income criteria not being one indicated for identifying the beneficiaries under the SEBC category, we have to presume that it was not intended to be applied to the said category. Viewed in this backdrop we are of the view that when it comes
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 22 : W.P.(C).No.39587/18**
to a choice of students from among those who admittedly fall under the category of SEBC, the criteria to be adopted must be their inter se merit based on their ranking in the entrance examination. Among those that are equally eligible for the benefit, the more meritorious must be chosen. Such an interpretation, would in our view, accord with the object of the regulatory measures that are in place to regulate admissions to medical courses in the State. In holding this view we draw support from the judgment of the Supreme Court in E.V. Chinnaiah v. State of A.P. And Others - [(2005) 1 SCC 394] where, while discussing the legality of an Ordinance issued by the State of A.P. dividing 57 castes enumerated in the Presidential List into 4 group based on inter se backwardness and fixing separate quotas in reservation for each of those groups, it was held by the Court that as per the Scheme under Article 341 of our Constitution, castes once included in the Presidential list form a class by themselves. If they are one class under the Constitution, any division of these classes of persons based on any consideration would amount to tinkering with the Presidential List.
14. We might also refer to a recent Division Bench judgment of this Court in Amla R. v. Union of India and Others - [2019 (3) KHC 540] where this Court considered the issue of whether the office of the Accountant General could make a comparative study from among claimants for compassionate appointment while appointing such persons to the 5% of vacancies to posts in the said Department. Answering the question in the negative the Court held:
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 23 : W.P.(C).No.39587/18**
## “xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxx
12. We are of the opinion that the Tribunal was not justified in rejecting the claim for the reason that the petitioner was studying for LLB equipped educationally to make a living for herself. The learned CGC submits that there were other more OP(CAT) No.862/2013 9 deserving candidates, who were given employment in place of the petitioner. The authorities cannot make a comparative study as to who among the claimants for appointment on compassionate ground are more deserving. They do not have such an adjudicatory power. All that they can determine is whether the applicant claiming appointment on compassionate ground is eligible and coming within the criteria fixed for appointment under the scheme for dying-in-harness. In case the applicant is found eligible, she has to be empanelled among the persons who have laid their claim for such appointment. The authorities cannot exceed the limit of 5% of the total vacancies arising, for appointment on compassionate grounds. But, in case the applicant falls within the criteria required for compassionate appointment, she is to be empanelled in the list, and she could be given employment in the following year or in the year next to that in accordance with the seniority among the claimants, who seek appointment on compassionate ground. xxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx”
15. In the instant cases, we are dealing with a slightly different situation,
and with a clause that requires the self-financing institutions to choose a few from among a homogeneous group, for extending the benefit of fee concession. In our view, the benefit must go to the most deserving in the said group, as identified through the criteria of merit, the criteria of lesser income having already been adopted while offering concessions to students in the BPL category.
Resultantly, we allow W.A.Nos.2129/2018, 344/2019 and 403/2019, by
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 24 : W.P.(C).No.39587/18**
setting aside the judgment dated 6.8.2018 of the learned Single Judge in W.P. (C).Nos.31793/2016 and 31801/2016. W.A.No.2125/2018 is dismissed by upholding the judgment dated 6.9.2018 of the learned Single Judge in W.P. (C).No.23744/2018 for the reasons mentioned in the said judgment as supplemented by the reasons in this judgment. W.P.(C).No.39587/2018 is allowed by directing the respondent College to grant fee concession to SEBC students based on our judgment in W.A.No.2125/2018.
**Sd/HRISHIKESH ROY CHIEF JUSTICE**
**Sd/A.K.JAYASANKARAN NAMBIAR JUDGE**
prp
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 25 : W.P.(C).No.39587/18**
## **APPENDIX OF W.P.(C).NO.39587/2018**
**EXHIBIT P1 TRUE COPY OF THE G.O(RT)NOI.2476/2016/H&FWD DTD.03.09.2016 EXHIBIT P2 TRUE C0PY OF G.O(RT)NO.3201/2017/H&FWD DTD.10.11.2017 EXHIBIT P3 TRUE COPY OF THE PAGE NOS.11 TO 14 OF KEAM PROSPECTUS 2016 CONTAINING CLAUSE NOS.5.4.2 AND 5.4.4 APPROVED BY GOVERNMENT OF KERALA VIDE G.O.(MS)N.683/2015/H.EDN.DTD.11.12.2015. EXHIBIT P4 TRUE COPY OF G.O(P)NO.1/2015/BCDD DTD.01.0312015 ALONG WITH THE ANNEXURES. EXHIBIT P5 TRUE COPY OF THE G.O. (MS)NO.4/2015.H.EDN.DTD.05.01.2015 EXHIBIT P5(A) TRUE COPY OF G.O. (MS)NO.15/2015/H.EDN.DTD.19.01.2015 EXHIBIT P6 TRUE COPY OF THE LIST OF CANDIDATES SELECTED FOR FEE CONCESSION DTD. 04.12.2017 BY THE 2ND RESPONDENT IN THE 3RD RESPONDENT COLLEGE. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DTD.16.04.2018 SUBMITTED BY THE 1ST PETITIONER'S FATHER EXHIBIT P8 TRUE COPY OF THE COMPLAINT DTD.16.04.2018 SUBMITTED BEFORE THE ADMISSION SUPERVISORY COMMITTEE. EXHIBIT P9 TRUE COPY OF THE ORDER BEARING NO.ASC(P)32/18/HO/TVPM/MBBS/MES DTD.24.07.2018 EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DTD.21.05.2018 SUBMITTED BY THE 1ST PETITIONER;'S FATHER EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DTD.30.06.2018.**
**W.A.Nos.2125 & 2129/18, W.A.Nos.344 & 403/19 & : 26 : W.P.(C).No.39587/18**
**EXHIBIT P12 TRUE COPY OF THE LETTER BEARING NO.TA 1- 04/2018/CEE DTD.20.07.2018 EXHIBIT P13 TRUE COPY OF THE LETTER DTD. 09.08.2018 SUBMITTED BY THE 1ST PETITIONER'S FATHER BEFORE THE 3RD RESPONDENT. EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DTD. 08.10.2018 EXHIBIT P15 TRUE COPY OF THE JUDGMENT DTD. 06.09.2018 IN W.P(C)NO.23744/2018.**
**RESPONDENTS EXHIBITS: NIL.**
## **//TRUE COPY//**
**P.S. TO JUDGE**