State of Kerala represented by Chief Secretary, Government Secretariat, Thiruvananthapuram v. Sandhya S.R. Chandran and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **TUESDAY, THE 3RD DAY OF APRIL 2018 / 13TH CHAITHRA, 1940** **WA.No. 110 of 2017 IN WPC. 34862/2016** **---------------------------------------** **AGAINST THE JUDGMENT IN WP(C) 34862/2016 of HIGH COURT OF KERALA DATED 15-12-2016** **APPELLANT(S)/RESPONDENTS 1 TO 4 IN WPC** **-------------------------------------** **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANANTHAPURAM-695001.** **2 PRINCIPAL SECRETARY TO GOVERNMENT, BACKWARD COMMUNITY DEVELOPMENT (A)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **3 COMMISSIONER OF ENTRANCE EXAMINATIONS, THIRUVANANTHAPURAM, PIN-695001.** ## **4 THE DIRECTOR** **AYURDEDA MEDICAL EDUCATION, AROGYA BHAVAN, THIRUVANANTHAPURAM-695124.** **BY SPL.GOVERNMENT PLEADER SRI. P. SANTHOSHKUMAR** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------** ## **1. SANDHYA S.R.** **CHANDRAN, AGED 30 YEARS, D/O.RAMACHANDRAN, RESIDING IN RAMAKSHARI, DEWESWARAM, KILIMANOOR P.O, THIRUVANANTHAPURAM DISTRICT, PIN-695601.** **2. INTERVIEW BOARD CONSTITUTED BY THE DIRECTOR, AYURVEDA MEDICAL EDUCATION, AROGYA BHAVAN, THIRUVANANTHAPURAM-695124.** ## **3. RESHMA M A** **SHOWN AS RANK NO 102(G.N), GOVERNMENT AYURVEDA COLLEGE, KANNUR-670001.** **4. ASWATHY U S SHOWN AS RANK NO 100(G.N), GOVERNMENT AYURVEDA COLLEGE, KANNUR-670001.** **WA.No. 110 of 2017** **- 2 -** ## **5. SHWETHA VELAYUDHAN** **SHOWN AS RANK NO 53(G.N), VPSV AYURVEDA COLLEGE, KOTTAKKAL, MALAPPURAM - 676124.** ## **6. ADMAJA PRABHAKARAN,** **SHWON AS RANK NO 101(G.N), GOVERNMENT AYURVEDA COLLEGE, KANNUR- 670001.** ## **7. JINI RAJ** **SHOWN AS RANK NO 1139(S.T), PARASINIKADAVU AYURVEDA COLLEGE, PARASINIKADAVU, KANNUR 679134.** **R1 BY ADV. SRI.G.S.REGHUNATH** **R3,R4,R6 BY ADV. SRI.SHEEJO CHACKO** **R3,R4,R6 BY ADV. SRI.ANAND PARATHARA R5 BY SRI.V.T.RAGHUNATH** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sou.** ## **Antony Dominic, CJ & Dama Seshadri Naidu, J** ----------------------------------------- W.A. No. 110 of 2017 ----------------------------------------Dated this the 3[rd] day of April, 2018 ## J U D G M E N T ## Antony Dominic, CJ This writ appeal is filed by the official respondents in writ petition No.34862 of 2016 aggrieved by the judgment dated 15.12.2016 rendered by the learned Single Judge. The writ petition was filed by the first respondent herein with a prayer to declare Ext.P10 as illegal as it was against the provisions of Exts.P3 Government Order and P3(a) list of OBC communities. A direction was also sought for correction of Ext.P11 select list and to include the first respondent under the category of EC community eligible for educational concession as is given to OEC categories. By the judgment under appeal, the learned Single Judge rejected the case of the first respondent that reservation provided in Ext.P10 is vitiated for fraud. However, the learned Single Judge directed that in view of Exts.P3 and _**W.A.110/17**_ 2 P3(a), students belonging to OBH category were entitled to get 3% reservation and the prescription in Ext.P10 that they would be entitled to get only 1% reservation, was in violation of the Government notification and hence arbitrary, illegal and unfair. It is this judgment, which is under challenge in this appel. 2. We heard the learned Senior Government Pleader appearing for the appellants and the learned counsel appearing for the first respondent. 3. On facts, it is relevant to note that the first respondent had obtained rank No.28 in the entrance examination conducted for admission to M.D.(Ayurveda). She was given rank No.4 from the list among EC communities eligible for educational concessions as given for OEC. In the ranked list published on 17.10.2016 she was given rank No.4 as she belonged to 'Vanika-Vaishya' community, which is included among the 30 other backward communities eligible for educational concession as is given to OEC under the Government Order dated 23.5.2014, a copy of which is produced as Ext.P3. The Government Order provided 3% reservation to 30 communities enumerated in Ext.P3(a) and it _**W.A.110/17**_ 3 was on that basis, rank was assigned to the first respondent in the ranked list. However, in Ext.P10, the prospectus for postgraduate course in Ayurveda 2016-17, in clause 3 II (b) (c), only 1% reservation was provided to candidates belonging to Other Backward Hindu (OBH). In other words, as against the 3% reservation provided in Ext.P3 Government order dated 23.5.2014, in the prospectus, only 1% reservation was provided. As a result of the reduction in the percentage of reservation, the first respondent lost her opportunity to secure admission in the reservation quota. It was in these circumstances, the writ petition was filed impugning Ext.P10 to the extent mentioned above and seeking implementation of reservation on the basis of Ext.P3. 4. As we have already stated, though the contention of the first respondent that reduction in reservation as available in Ext.P10 was vitiated by fraud, that case was rejected by the learned Single Judge and in spite of that, it was held that Ext.P10, to the extent it reduced the rate of reservation, was vitiated for illegality and arbitrariness and it is on that basis, relief was granted to the first respondent. _**W.A.110/17**_ 4 5. Impugning the above findings of the learned Single Judge, the learned Government Pleader argued that though in Ext.P3 issued on 23.5.2014, 3% reservation was provided for OBH categories of students, as in the previous years and subsequent years, in Ext.P10 prospectus only 1% was consciously provided. He invited our attention to Ext.P10(a) Government Order dated 26.8.2016 whereby the Government was pleased to accord approval to the prospectus for 2016-17. It is stated that therefore, the rights, if any, of the students was only under the prospectus and that therefore, the learned single Judge was in error in having directed extension of the benefit of Ext.P3 to the first respondent. 6. However, this contention of the learned Government Pleader was contradicted by the learned counsel for the first respondent and according to him, Ext.P3 Government Order dated 23.5.2014 was an order issued by the State in discharge of its constitutional obligation under Article 15(4) of the Constitution of India and that therefore, it could not have been modified by Ext.P10 prospectus. He contended that even if Ext.P10 is taken as a modification of Ext.P3, the modification _**W.A.110/17**_ 5 effected is vitiated for fraud, as such modification was obtained without bringing to the notice of the Government, the existence of Ext.P3 and its binding force. 7. Learned counsel for the first respondent invited our attention to several judgments of the Apex Court, including **Indian Bank v. Satyam Fibres (India) Pvt. Ltd. [(1996) 5 SCC 550]** , **State of A.P. And another v. T. Suryachandra Rao [(2005) 6 SCC 149]** , **Bhaurao Dagdu Paralkar v. State of Maharashtra and Others [(2005) 7 SCC 605]** , **A.V. Papayya Sastry and others v. Government of A.P. and others [(2007) 4 SCC 221]** and **Union of India and others v. Ramesh Gandhi [(2012) 1 SCC 476]** to explain the concept of fraud and its consequences. 8. We have considered the submissions made. As we have already stated, the first prayer in the writ petition was to invalidate the provision in Ext.P10 providing for 1% reservation, as vitiated for fraud. It is as a consequence of that prayer the first respondent had sought directions requiring the appellants to correct Ext.P11 select list and to _**W.A.110/17**_ 6 include her in the category of EC community eligible for admission and other concessions. 9. Paragraph 15 of the judgment under appeal shows that the learned Single Judge has specifically addressed the question as to whether Ext.P10 was vitiated for fraud and has rejected that contention. However, the learned Single Judge thereafter proceeded to hold that Ext.P10 is vitiated for illegalities and on that basis ordered implementation of Ext.P3. According to us, these directions issued by the learned Single Judge are clearly contradictory and inconsistent. When the main prayer sought by the first respondent was denied, the learned Single Judge could not have granted the consequential prayers. 10. Be that as it may, this difficulty was sought to be explained by the counsel for the first respondent by relying on the provisions contained in Order XLI Rule 22 of the CPC and contending that he is entitled to support the judgment and also to argue that the findings therein, which are against the first respondent, should have been in her favour. Even if it is assumed that the first respondent is entitled to rely on the _**W.A.110/17**_ 7 provisions of Order XLI Rule 22, according to us, the finding of the learned Single Judge regarding the alleged illegality of Ext.P10 cannot be sustained. It is true that by Ext.P3, 3% reservation was prescribed to OBH category. While that was the general Government Order, materials produced before us show that in the matter of admission to Medical Degree courses, 3% reservation prescribed in Ext.P3 was followed through out and at the same time in so far as admission to Postgraduate courses are concerned, even prior to Ext.P10, only 1% reservation was provided. Learned Government Pleader has produced before us the details regarding admissions made in 2013-14, 2014-15, 2015-16 and the prospectus for the subsequent years, which all show that for postgraduate courses only 1% reservation alone was given. Such reduced percentage of reservation was provided on the basis of the prescriptions incorporated in the prospectus for the relevant years and which again was approved by the Government. This, therefore, means that for admission to postgraduate courses, the prescription in Ext.P3 was never followed and reduced percentage of 1% was fixed by the _**W.A.110/17**_ 8 Government. The Government, which is to provide reservation in terms of the enabling provisions contained in Article 15(4) of the Constitution, are also entitled to prescribe the percentage thereof. The fact that 3% reservation was provided in Ext.P3 does not mean that the Government did not have the liberty to prescribe a lesser percentage of reservation in individual cases such as admission to postgraduate courses. If that be so, admission could have been made for the year 2016-17 only in terms of Ext.P10, which was duly approved by the Government as per Ext.P10(a). If that be so, there is nothing illegal or arbitrary in Ext.P10 or the provisions contained therein. 11. True, the learned counsel for the first respondent relied on many judgments of the Apex Court explaining the concept of fraud and also its consequences. We have no doubt about the correctness of the legal principles laid down by the Apex Court. However, the first respondent was unable to show how Ext.P10 was vitiated for fraud as alleged by her. If fraud is not established as a fact, the question of application of the principles explaining the concept of fraud or its consequences _**W.A.110/17**_ 9 have no relevance. Therefore, we do not find any relevance to the judgments relied on by the learned counsel for the first respondent. 12. Sum and substance of the above discussion is that according to us, learned Single Judge was totally unjustified in his conclusion that Ext.P10, to the extent it provided for 1% reservation for OBH category, was vitiated for illegalities and arbitrariness and as a consequence thereof in granting relief to the first respondent. In the result, the judgment under appeal is set aside, the appeal is allowed and the writ petition will stand dismissed. Sd/Antony Dominic, Chief Justice Sd/Dama Seshadri Naidu, Judge sou.6/2. // true copy //