Riya R Ebenezer, Nevin Samuel P., and J. Jabez Graham Singh (minor petitioners) v. Union of India and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940 **WP(C).No. 26683 of 2018** ## **PETITIONER(S)** 1 RIYA R EBENEZER, (MINOR, REPRESENTED BY HER FATHER REJEE EBENEZER), 8-163, THERIVILAI PULIPPUNAM, KATTAHURAI, KANYAKUMARI, TAMILNADU-629 158. 2 NEVIN SAMUEL P., (MINOR, REPRESENTED BY HIS FATHER DR.PREM NATH) HOUSE NO.16,MAIN ROAD, KULAVANIKARAPURAM, PALAYAMKOTTAI, THIRUNELVELI, TAMILNADU. 3 J.JABEZ GRAHAM SINGH, (MINOR, REPRESENTED BY HIS FATHER DR.J.JOHN SINGH), R/O-57, AMBAI ROAD, KULLAVANIGAR PURAM, THIRUNELVELI, TAMILNADU-627 005. BY ADVS. SRI. S. SREEKUMAR (SR.) SRI.ARUN.B.VARGHESE SRI.R.SANJAY SANKAR ## RESPONDENT(S): 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEW DELHI-110 001. 2. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-659 001. 3. DIRECTORATE GENERAL OF HEALTH SERVICES, REPRESENTED BY ITS DIRECTOR GENERAL OF HEALTH SERVICES, NIRMAN BHAVAN, NEW DELHI-110 001. 4. MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, POCKET 14, SECTOR-8, DWARAKA, PHASE-1, NEW DELHI-110 088. 5. DR.SMSCI MEDICAL COLLEGE, KARAKONAM, REPRESENTED BY ITS DIRECTOR, THIRUVANANTHPAURAM-695 504. 6. ADMISSION AND FEE REGULATORY COMMITTEE FOR MEDICAL COLLEGES IN KERALA, REPRESENTED BY ITS CHAIRMAN, T.C.15/1553-4, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHAKKAD, THIRUVANANTHAPURAM-695 014 7. COMMISSIONER OF ENTRANCE EXAMINATION, - 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHPAURAM, 696 001. R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2, 3, & 7 BY SR. GOVERNMENT PLEADER SRI. V. MANU R6 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES R4 BY SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26683 of 2018 (I) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1- A TRUE COPY OF THE ORDER BEARING FILE NUMBER 469 OF 2006 DATED 21/6/2006 ISSUED BY THE SECRETARY NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS CONFERRING MINORITY STATUS TO THE 5TH RESPONDENT. EXHIBIT P2- A TRUE COPY OF THE DECISION IN ASSOCIATION OF MANAGEMENTS OF UNAIDED PRIVATE MEDICAL AND DENTAL COLLEGE AND ANOTHER V.UNION OF INDIA & OTHERS REPORTED IN 2016 KHC 6334. EXHIBIT P3- A TRUE COPY OF ORDER DATED 28/9/2016 IN CIVIL APPEAL NO.9862/2016 AS PASSED BY THE HON'BLE SUPREME COURT OF INDIA. EXHIBIT P4- A TRUE COPY OF ORDER DATED 9/5/2017 IN WRIT PETITION (S) (CIVIL) NO.(S) 267/2017 OF THE HON'BLE SUPREME COURT OF INDIA. EXHIBIT P5- A TRUE COPY OF THE RELEVANT PORTION OF THE PROSEPEDTUS-KEAM-2018 EXHIBIT P6- A TRUE COPY OF THE GOVERNMENT ORDER GO)MS)NO.39/2018/HEDN DATED 30/1/2018 ISSUED BY THE GOVERNMENT OF KERALA. EXHIBIT P7- A TRUE COPY OF THE RELEVANT PORTION OF THE PROSPECTUS FOR ADMISSION TO THE MEDICAL POST GRADUATE DEGREE/DIPLOMA COURSES EXHIBIT P8- A TRUE COPY OF THE ORDER NO.AFRC 100/18/MD/MS/DIPLOMA/DIRECTIVES DATED 21/4/2018 ISSUED BY THE 6TH RESPONDENT EXHIBIT P9- A TRUE COPY OF MARKS -SHEET OF THE WRIT PETITIONERS IN NEET-UG-2018 DATED NIL. EXHIBIT P10- A TRUE COPY OF THE JUDGMENT DATED 24/8/2017 IN WPC NO.541/2017 OF THE HONOURABLE SUPREME COURT OF INDIA EXHIBIT P11- A TRUE COPY OF THE REPRESENTATION DATED 7/5/2018 SUBMITTED BY THE BISHOP OF CHURCH OF SOUTH INDIA, SOUTH KERALA DIOCESE (SIUC) BEFORE THE 6TH RESPONDENT EXHIBIT P12- A TRUE COPY OF ORDER NO.GO(RT)NO.2223/2017/H&FWD DATED 8/8/2017 ISSUED BY THE 2ND RESPONDENT EXHIBIT P13- A TRUE COPY OF THE ORDER DATED 30/7/2018 IN WRIT PETITION (CIVIL) NO.(S) 867/2018 AND CONNECTED WRIT PETITION (CIVIL) NO.(S) 896/2018. //true copy// Sd/- P.S. To Judge C.R. ## K. SURENDRA MOHAN & SHIRCY V, JJ. - - - - - - - - - - - - - - - - - W.P.(C) No. 26683 of 2018 - - - - - - - - - - - - - - - - - Dated this the 7[th] day of August, 2018 ## JUDGMENT ## Surendra Mohan, J. Two students who have appeared for the National Eligibility cum Entrance Test (UG) for the year 2018 (hereinafter referred to as the 'NEET' for short) desirous of obtaining admission to the professional course of MBBS have filed this writ petition. According to them, they have secured the cut off percentile for eligibility to obtain admission. They belong to the State of Tamil Nadu and are members of the CSI (SIUC) community, which is a Christian denomination. They also claim that their community has been categorized as an Other Backward Community (OBC) and is recognized as such throughout the country. The fifth respondent is a Medical College established in the year 2002 by their community, the CSI (SIUC), a minority community. It is contended that, in Ext.P12 Government Order that related to the academic year 2017-2018, there WPC.26683/2018 2 were clauses under which seats were reserved for students belonging to their community. Particularly, reliance is placed on Clause 2(iii) where 20 seats were earmarked for Non-Keralites belonging to CSI, Diocese members, Associate members of CSI/CNI, Anglican Church of India. However, in Ext.P5 prospectus, apart from the fact that there is no similar clause included, persons like the petitioners have been totally excluded in view of the wordings of Clause 6.1 thereof. As per Ext.P8 order, the sixth respondent has approved the prospectus. It is contended that, the prospectus Ext.P5, Ext.P6 Government Order approving the prospectus, as well as the order of the sixth respondent Ext.P8, by which the prospectus is approved by the sixth respondent, are liable to be set aside as being violative of the rights of the petitioner under Article 30 (1) of the Constitution. 2. According to the learned Senior Counsel Sri. S.Sreekumar who appears for the petitioner, though the sixth respondent has placed reliance on Ext.P10 judgment WPC.26683/2018 3 of the Apex Court to sustain the validity of Clause 6.1 of Ext.P5, the Court has not considered the challenge made against the said clause, on the merits. In fact, it is contended that, Ext.P10 has been passed and the claim negatived on the preliminary question of maintainability alone. For the above reason, it is contended that, the sixth respondent ought not to have approved the prospectus. Our attention is drawn to paragraph 102 of the decision in P.A. Inamdar v. State of Maharashtra ((2005) 6 SCC 537) to contend that, a “sprinkling” of candidates outside the State was permissible in institutions run by minority communities. According to the learned Senior Counsel, the dictum laid down by the Apex Court in T.M.A. Pai Foundation v. State of Karnataka ((2002) 8 SCC 481) read in conjunction with the decision in P.A. Inamdar v. State of Maharashtra (supra) confers a right on the minority community to grant admissions to even trans border candidates. The learned counsel therefore seeks interference with the impugned orders. WPC.26683/2018 4 3. Per contra, the learned Government Pleader who appears for respondents 2 and 7 points out that, in Ext.P8 order of the sixth respondent, what was being considered was only admissions to the post graduate courses of MD/MS/Diploma Admission 2018-2019 as evident from the reference shown in the said order. The claim of the petitioners being for admission to undergraduate courses, it is contended that Ext.P8 has no application to such courses. It is further pointed out that the prospectus Ext.P5 is dated 30.1.2018, which was approved on the same date by the Government. Thereafter, on the basis of the prospectus, the admission process has commenced. A rank list on the basis of NEET was published on 21.6.2018. On the basis of the rank list, a first allotment was made on 4.7.2018. Since this writ petition has been filed only on 6.8.2018 on the eve of the second allotment that is in the process of being effected, it is contended that the challenge made by the petitioners is belated. In addition to the above preliminary objection, it is pointed out by the learned WPC.26683/2018 5 Government Pleader that as per Clause 6(i) of Ext.P5, the candidates have been divided into three categories designated as Keralites, Non-Keralite Category I and NonKeralite Category II. As per the definition contained in Ext.P5, there is no exclusion of Non-Keralites in toto. NonKeralites are also permitted to be granted admission, but subject to the restrictions contained in the said clause. The learned Government Pleader places reliance on the decision of the Apex Court in Dr. Pradeep Jain v. Union of India ((1984) 3 SCC 654) to point out that what has been prohibited therein is only reservation on Geographical basis that extends to 100%. Inasmuch as there is no 100% reservation for Keralites on geographical basis, the clause is perfectly valid. The learned Government Pleader also places reliance on the dictum in Sourav Choudhary v. Union of India ((2003) 11 SCC 146) particularly paragraph 29 to point out that the clause as worded in Ext.P5 is perfectly valid. 4. We have heard Adv. Titus Mani who appears for the fourth respondent as well as Adv. Mary Benjamin WPC.26683/2018 6 who appears for the sixth respondent also. 5. The basic question canvassed before us is with regard to the validity of Clause 6.1 in Ext.P5. Clause 6 stipulates the criteria for eligibility for admission. It is provided in Clause 6.1 that only Indian citizens, persons of Indian origin, Overseas citizens of India would be eligible for admission. The clause further goes on to categorize candidates into Non-Keralite Category I (NK-I) and NonKeralite Category II (NK-II). A candidate of Kerala origin is categorized as a Keralite. The said category would include children of All India Service Officers (Non-Keralites) allotted to Kerala cadre who are deemed to be Keralites, but they would not be eligible for communal/Special/Persons with Disabilities reservation or any fee concession. NK-I category includes a person who is not of Kerala origin, who has undergone qualifying course in Kerala and who is the son/daughter of Non-Keralite parents belonging to Government of India/Defence Service, posted to Kerala. It also includes a candidate who has undergone qualifying WPC.26683/2018 7 course in Kerala and who is the son/daughter of NonKeralite parents serving or served Government of Kerala for a minimum period of two years. A candidate who has been a resident of Kerala for more than a period of five years within a period of twelve years is also included in the said category. Candidates who do not come under NK-I category fall within NK-II category. They are held not eligible for admission to Medical and Allied Courses including MBBS/BDS and for admission to Government Engineering Colleges. 6. A perusal of the above clause leaves no doubt in our minds that, the said clause does not impose a 100% prohibition on the grant of admission to persons who do not belong to the State of Kerala. What has been done is only to restrict the eligibility of persons from outside Kerala to obtain admission to the various courses in the State. We notice that, Non-Keralites are also permitted and considered to be eligible to seek admission in the State of Kerala under the NK-I category. Under the NK-II category WPC.26683/2018 8 also, the exclusion is only with respect to the eligibility for admission to MBBS/BDS and for admission to Government Engineering Colleges. It therefore follows that, there is no restriction to the extent of 100% which alone is prohibited. 7. In the above context, it is necessary to notice that, in the case of Dr. Pradeep Jain v. Union of India (supra) while considering the vires of a similar clause, the Apex Court has made it clear in paragraph 6 that such a clause does not violate either Article 15 or Article 16 of the Constitution. Paragraph 6 being relevant, is extracted below: “6. But, it is clear that so far as admissions to an educational institution such as a medical college are concerned, Article 16(2) has no application. If, therefore, there is any residence requirement for admission to a medical college in a State, it cannot be condemned as unconstitutional on ground of violation of Article 16(2). Nor can Article 15 clauses (1) and (2) be invoked for invalidating such residence requirement because these clauses prohibits discrimination on ground of place of birth and not on ground of WPC.26683/2018 9 residence and, as pointed out by this Court in D.P. Joshi v. State of Madhya Barat, residence and place of birth are “two distinct conceptions with different connotations both in law and in fact”. The only provision of the Constitution on the touchstone of which such residence requirement can be required to be tested is Article 14 and that is precisely the challenge which falls to be considered by us in these writ petitions.” The challenge was considered thereafter by the Court with reference to Article 14 also and has been negatived in paragraph 19 of the judgment, in the following words: “19. It will be noticed from the above discussion that though intra-State discrimination between persons resident in different districts or regions of a State has by and large been frowned upon by the Court and struck down as invalid as in Minor P. Rajendran case and Peeria karuppan case, the Court has in D.N. Chanchala case and other similar cases upheld institutional reservation effected through university wise distribution of seats for admission to medical colleges. The Court has also by its decisions in D.P. Joshi case and N. Vasundara case sustained the constitutional validity of reservation based on residence requirement within a State for the purpose of admission to medical colleges. These decisions which WPC.26683/2018 10 all relate to admission to MBBS course are binding upon us and it is therefore not possible for us to hold, in the face of these decisions, that residence requirement in a State for admission to MBBS course is irrational and irrelevant and cannot be introduced as a condition for admission without violating the mandate of equality of opportunity contained in Article 14. We must proceed on the basis that at least so far as admission to MBBS course is concerned, residence requirement in a State can be introduced as a condition for admission to the MBBS course.” 8. The contention in the present case is that, in view of the fact that the fifth respondent is a College conducted by a minority community, the right under Article 30 (1) of the Constitution would entitle the petitioners to claim admission even though they do not belong to the State of Kerala. In the above context, paragraph 76 of the decision in T.M.A. Pai Foundation v. State of Karnataka (supra) reads as under: “76. If, therefore, the State has to be regarded as the unit for determining “linguistic minority” visa-vis Article 30, then with “religious minority” being on the same footing, it is the State in relation to WPC.26683/2018 11 which the majority or minority status will have to be determined.” Therefore, even with respect to a religious minority, the State is the unit for deciding minority. This is for the reason that a community that is a minority in one State need not be a minority in another State. With respect to the contention that paragraph 102 of P.A. Inamdar v. State of Maharashtra (supra) has recognized the rights of the minorities to admit students from outside State also, we notice that, what has been permitted by the said decision is only to have a 'sprinkling' of non-minority students from other State. Paragraph 102 of the said decision is extracted hereunder for convenience of reference: “102. It necessarily follows from the law laid down in Pai Foundation that to establish a minority institution the institution must primarily cater to the requirements of that minority of that State else its character of minority institution is lost. However, to borrow the words of Chief Justice S.R. Das in Kerala Education Bill a “sprinkling” of that minority from the other State on the same footing as a sprinkling of non-minority students, would be permissible and WPC.26683/2018 12 would not deprive the institution of its essential character of being a minority institution determined by reference to that State as a unit.” The said 'sprinkling' to which reference has been made by the Apex Court above, stands satisfied in view of the fact that, NK-I category in Ext.P5 permits students from other States who satisfy the stipulations contained therein also, to be admitted to all Colleges within the State. In other words, the stipulations contained in Clause 6.1 of Ext.P5 Prospectus do not militate against the permissive grant of a sprinkling from other States that has been approved by the Apex Court. In the above view of the matter, we do not find any substance in the challenge made by the petitioners before us. 9. It is true that, the admission process in the State has progressed considerably, the first allotment has been completed and the second allotment is about to commence. The NEET rank list has been published and admissions are being made through a process of centralized counseling in the order of merit, from the NEET rank list. WPC.26683/2018 13 We are not satisfied that, any interference with the said process is warranted, at this stage for the further reason that this writ petition has been filed only on 6.8.2018. For the foregoing reasons, this writ petition fails and is accordingly dismissed. Sd/K. SURENDRA MOHAN JUDGE Sd/SHIRCY V JUDGE sb