SHIVANGI DUTTA v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P. CHALY** **WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940** **WP(C).No. 22461 of 2018** ## **PETITIONER(S)** **SHIVANGI DUTTA, AGED 17 YEARS, D/O.TEJESH KUMAR DUTTA, FIRST FLOOR, TMC-1/399-15, OMEGA DAFFODILS, BAZAR ROAD, THRISSUR, VIYYUR, KERALA- 680 010, REPRESENTED BY HER FATHER TEJESH KUMAR DUTTA, AGED 48 YEARS, FIRST FLOOR, TMC-1/399-15, OMEGA DAFFODILS, BAZAR ROAD, THRISSUR, VIYYUR, KERALA- 680 010.** **BY ADVS. SRI.M.K.DILEEPAN SRI. DEEPAK T. NEDUNGADAN SMT.P.SUMITHRA** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM- 695 001.** **3. THE DIRECTOR, CENTRAL BOARD OF SECONDARY EDUCATION (CBSE), NEW DELHI- 110 092.** **4. THE MANAGER, ADMISSION AND FEE REGULATORY COMMITTEE FOR PROFESSIONAL COURSES, TC 15/1553-4, PRASANTHI BUILDING, VAZHUTHAKAD, THIRUVANANTHAPURM- 695 014.** **5. KERALA STATE SPORTS COUNCIL, THIRUVANANTHAPURAM- 695 001, REPRESENTED BY ITS SECRETARY.** **R1 & R2 BY SENIOR GOVERNMENT PLEADER, SRI. V. MANU R3 BY SRI.NIRMAL S., SC, CBSE R4 BY SMT. MARY BENJAMIN, SC R5 BY SMT.LATHA ANAND, SC, KERALA STATE SPORTS COUNCIL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **P.T.O** **WP(C).No. 22461 of 2018 (G)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF NOTIFICATION KEAM-2018 ISSUED BY THE 2ND RESPONDENT DATED 31.01.2018.** - **EXHIBIT P2 TRUE COPY OF HALL TICKET ISSUED TO PETITIONER BY 2ND RESPONDENT FOR ATTENDING THE NEET-UG EXAMINATION HELD ON 06.05.2018.** - **EXHIBIT P3 TRUE COPY OF NEET-UG-2018 RESULT SUBMISSION REPORT ISSUED FROM THE OFFICE OF 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE MARK STATEMENT ISSUED BY THE CONTROLLER OF EXAMINATIONS.** - **EXHIBIT P5 TRUE COPIES OF CERTIFICATES OBTAINED BY PETITIONER IN VARIOUS TABLE TENNIS COMPETITIONS.** - **EXHIBIT P6 TRUE COPY OF RELEVANT PAGE OF THE PROSPECTUS DISCLOSING THE NORMS FOR SELECTION OF CANDIDATES UNDER SPORTS QUOTA.** - **EXHIBIT P7 TRUE COPY OF THE CATEGORY WISE PROVISIONAL RANK LIST ISSUED BY 2ND RESPONDENT UNDER SPECIAL QUOTA ON 23.06.2018.** - **EXHIBIT P8 TRUE COPIES OF SCHOOL CERTIFICATES DISCLOSING THE COURSE OF STUDY OF PETITIONER FROM FIRST STANDARD UP TO 12TH STANDARD IN KERALA.** - **EXHIBIT P9 TRUE COPY OF VOTERS IDENTITY CARD ISSUED TO PETITIONER'S FATHER.** - **EXHIBIT P10 TRUE COPY OF VOTERS IDENTITY CARD ISSUED TO PETITIONER'S MOTHER.** - **EXHIBIT P11 TRUE COPY OF THE RATION CARD ISSUED IN THE NAME OF PETITIONER'S MOTHER.** - **EXHIBIT P12 TRUE COPY OF THE NATIVITY CERTIFICATE ISSUED BY THE TAHSILDAR, THRISSUR TALUK.** ## **RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **St/-** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.22461 of 2018 ----------------------------------------------Dated this the 11[th] day of July, 2018** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P1 notification and Ext.P7 provisional rank list drawn up for admission to the MBBS Course, and also to direct the 2[nd] respondent to issue a rank list for admission to the MBBS Course under Sports Quota for the year 2018 including the petitioner on the basis of the marks she is eligible by virtue of Ext.P5 certificates secured by the petitioner for Table Tennis Tournaments. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is a candidate appeared for National Eligibility cum Entrance Test (Under Graduate) - 2018 conducted by the 3[rd] respondent for admission to the Medical and allied Courses. The 2[nd] respondent issued Ext.P1 notification inviting application for admission to various Degree Courses mentioned therein including MBBS, and as per the notification for admission to the MBBS seats in the Medical Colleges in Kerala State, the candidates seeking admission 2 **W.P.(C) No.22461 of 2018** should appear for NEET (UG) 2018 conducted by the 3[rd] respondent. Petitioner, as per Ext.P2 Hall Ticket issued by the 3[rd] respondent, appeared for the Entrance Examination, and as per Ext.P3 confirmation report of NEET Results, secured rank 147575 in All India Rank List, and Rank No.14044 in the State Rank List for admission to MBBS Course. 3. According to the petitioner, petitioner, who is a student in Kerala from 1[st] standard up to 12[th] standard, as disclosed by Ext.P8 certificates, and represented the Kerala State in Table Tennis Tournaments and secured State Level prizes, as disclosed by Ext.P5 certificates, is eligible for 240 marks as per the norms given in Ext.P6 Prospectus for eligibility to secure admission in Sports Quota from out of the seven seats reserved for the Course. However, 2[nd] respondent issued Ext.P7 provisional rank list without considering petitioner's application for seat under Sports Quota. 4. Petitioner, on verification of Ext.P7, came to know that a candidate who secured only 558.8889 marks is placed in 3[rd] rank in the Sports Quota (Team) rank list. According to the petitioner, though the petitioner got 567 marks, she was not considered for the reason that she was born outside Kerala, 3 **W.P.(C) No.22461 of 2018** and Ext.P1 notification provides for production of a certificate showing that she or any one of her parents are born in Kerala for eligibility for seats under special category. Petitioner's father was a State Player of Bihar and was migrated to Kerala at the behest of the 5[th] respondent as Table Tennis Coach in Kerala for promotion of that game and he is permanently settled in Kerala for the last 22 years. The family of the petitioner is permanently residing in Kerala as disclosed by Exts.P8 to P12 certificate/documents, and the petitioner who represented the Kerala State only in All India events, is eligible for a seat for MBBS Course under Sports Quota in Kerala State only. However, the same is declined to the petitioner for noncompliance of the requirement in Ext.P1 notification to produce a certificate to show that petitioner is born in Kerala, which, according to the petitioner, is arbitrary, discriminatory and unreasonable. These are the background facts projected by the petitioner to secure the reliefs pointed out above. 5. A detailed statement is filed for and on behalf of respondents 1 and 2, disputing the statements, allegations and claims and demands raised by the petitioner. The participation of the petitioner in the NEET examination and the 4 **W.P.(C) No.22461 of 2018** consequential rank secured are all admitted. However, it is submitted that, petitioner had claimed to be a “Keralite” in the online application submitted for KEAM-2018. Clause 6.1 of the Prospectus for KEAM-2018 stipulates the conditions of nativity to be satisfied by the applicants under KEAM-2018, by which, only Indian citizens are eligible for admission to Professional courses unless otherwise notified. Persons of Indian Origin/Overseas Citizen of India will also be treated at par with Indian citizens for the limited purpose of admission. However, Persons of Indian Origin/Overseas Citizen of India candidates will not be eligible for any kind of reservation. Candidates seeking admission to Professional courses will be categorized as Keralite, Non-Keralite Category I (NK I) and Non-Keralite Category-II (NK II). A 'Keralite' is defined as a candidate of Kerala origin, and children of All India Service (AIS) officers (Non-Keralites) allotted to Kerala cadre are deemed to be 'Keralites' as per G.O.(Rt) No.822/08/H. Edn. dated 29.05.2008. But, they will not be eligible for Communal/Special/Persons with Disabilities reservation or any fee concession. Non-Keralite Category-I (NK I) is defined to mean; a candidate who is not of Kerala origin but fulfils any **W.P.(C) No.22461 of 2018** 5 one of the following conditions will be categorized as 'Non- ## Keralite Category-I (NK I): _(a) A candidate who has undergone qualifying course in Kerala and who is son/daughter of NonKeralite parents belong to the Government of India/Defence Service, posted to Kerala._ _(b) A candidate who has undergone qualifying course in Kerala and who is son/daughter of NonKeralite parents who are serving/served Government of Kerala for a minimum period of two years._ _(c) A candidate who is not of Kerala Origin but has been a resident of Kerala State for a period of five years within the period of 12 years of his/her study; and_ _(d) A candidate who is not of Kerala Origin but who has undergone his/her school studies in Kerala from standard VIII to XII. Non-Keralite Category I candidates will be considered against 'State Merit' seats for Engineering/Architecture /B.Pharm/Medical and Allied courses. But, they will not be eligible for Communal/Special/Persons with Disabilities reservation or any fee concession._ 6. That apart, it is submitted that, as per Clause 6.1.1 of the Prospectus, in order to prove that a candidate is an Indian Citizen of Kerala origin, for the limited purpose of eligibility for admission, he/she has to produce the certificates prescribed thereunder. Other contentions are also raised with respect to the qualifications to be secured by such candidates in order to secure admission for NEET examination. 6 **W.P.(C) No.22461 of 2018** 7. It is also pointed out that, the issue with respect to State nativity and All India Quota were considered by the apex court in the judgments in ' _**Dr. Pradeep Jain and Others** v._ _**Union of India and Others**_ ' [(1984) 3 SCC 654] and ' _**Dr. Dinesh Kumar and others** v._ _**Motilal Nehru Medical College**_ ' [(1986) 3 SCC 727], and held that, setting apart 85% of the seats in MBBS course in Government Colleges in Kerala for “Keralites” and “Non-Keralite category-I” as defined in the KEAM Prospectus, on the basis of their birth in Kerala or their continued residence in Kerala for a definite period of time, as the case may be, is perfectly sustainable under law. 8. That apart, as per Clause 5(5)III of the Medical Council of India Graduate Medical Education Regulations, the reservation of seats in Medical Colleges for respective categories shall be as per the applicable law prevailing in States/Union Territories, and thus, State is the Unit for grant of reservation for any category and, as such, the restriction of sports quota for Keralites as defined in the KEAM Prospectus is also sustainable under law. It is further submitted that, even if the petitioner was a “Keralite” as defined in the Prospectus, she would not have got 240 marks in addition to her NEET **W.P.(C) No.22461 of 2018** 7 marks, as contended by her in the writ petition, and the reliance placed by the petitioner to secure such marks on the certificates produced by the petitioner is misplaced. Other contentions are also raised to justify the action of the respondents. 9. I have heard learned counsel for the petitioner and the learned Senior Government Pleader and perused the documents on record and the pleadings put forth by the respective parties. 10. The sole question to be considered is, whether the petitioner is entitled to secure admission in Sports Quota in the category of Non-Keralite Category-I. Learned Senior Government Pleader specifically pointed out that, as per NonKeralite Category-I (NK I) clause (c), a candidate who is not of Kerala Origin but has been a resident of Kerala State for a period of five years within the period of 12 years of his/her studies is entitled to secure admission, but only in the State category of 85%. Petitioner is not entitled to get special consideration in view of the specific provision contained under the Prospectus to the effect that, they will not be eligible for Communal/Special/Persons with Disabilities reservation or any 8 **W.P.(C) No.22461 of 2018** fee concession. Therefore, petitioner is not entitled for the special reservation, which is a factor to be considered when the petitioner submitted the online application in Sports Quota. 11. However, learned counsel for the petitioner pointed out that, petitioner is not included in the rank list for Sports Quota for the reason that, petitioner is not a person of Kerala origin. It is also pointed out that, even though petitioner has born outside the State of Kerala, her parents were in Kerala for the last more than 20 years, and the petitioner has pursued her studies in the State of Kerala throughout, and therefore, the prescription contained under Ext.P1 that a candidate of Kerala origin will alone be treated as a Keralite, cannot be sustained under law. 12. I have evaluated the _pros and cons,_ the legal provisions put forth by the respective parties on account of the Prospectus, Ext.P1 notification and the law laid down by the apex court in the afore-quoted judgments. I have also taken into account the certificates produced by the petitioner _vis-a-vis_ the provisions contained under Ext.P1 notification and the Prospectus, pointed out by the respondents in its statement filed. **W.P.(C) No.22461 of 2018** 9 13. So far as the certificates are concerned, except Ext.P5(1) certificate of merit, by which it is clear that, petitioner has secured Third position in Team Championship of Table Tennis in the 47[th] Inter District & 66[th] Kerala State Table Tennis Championship, 2017, all other certificates are relating to the Championships among the Kendriya Vidyalayas and Participation Certificates. However, in accordance with the provisions of the Prospectus and the notification, petitioner is not entitled to get marks for participation and the tournaments by and between the Kendriya Vidyalayas. Therefore, the contention raised by the petitioner for calculating her marks of 240 to be added to the NEET marks also is far-fetched and not in accordance with the provisions contained under the Prospectus and Ext.P1 notification. Moreover, it is evident from the description of the Prospectus in the statement filed for and on behalf of respondents 1 and 2 that the petitioner has participated in the admission process knowing fully well that she is entitled to secure admission in the Sports Quota in accordance with the provisions made thereunder. Therefore, after participating in the examination and in the admission process on the basis of the Prospectus and Ext.P1 notification, **W.P.(C) No.22461 of 2018** 10 petitioner is not entitled to turn around and attack the provisions of the said notification. So much so, Clause 5(5) (III) of the Medical Council of India Regulations on Graduate Medical Education, 1997 is relevant to the context, which read thus: _“III. The reservation of seats in medical colleges for respective categories shall be as per applicable laws prevailing in States/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility-cum-Entrance Test and candidates shall be admitted to MBBS course from the said lists only.”_ 14. That apart, learned Senior Government Pleader has pointed out that, even though petitioner has submitted the online application, petitioner has not submitted option of her choice for allotment and the last date of exercise of option was on 03.07.2018. Therefore, taking into account the totality of the circumstances, I am of the considered opinion that, petitioner is not entitled to get any reliefs as is sought for, since there is no illegality, arbitrariness, unfairness or unreasonableness on the part of the respondents in not providing rank to the petitioner under the Sports Quota. 11 **W.P.(C) No.22461 of 2018** The writ petition fails, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/12.07.2018