The Chairman, NRI Service and Educational Trust, Thiruvananthapuram v. Kerala University of Health Services and The Dental Council of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 3RD DAY OF JUNE 2014/13TH JYAISHTA, 1936 WP(C).No. 5583 of 2014 (W) --------------------------- PETITIONER: -------------------------- THE CHAIRMAN, NRI SERVICE AND EDUCATIONAL TRUST THIRUVANANTHAPURAM 682025 BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SRI.THOMAS GEORGE SRI.JIJI THOMAS RESPONDENTS : ---------------------------- KERALA UNIVERSITY OF HEALTH SERVICES, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O TRICHUR 680596 * ADDL.R2 IMPLEADED THE DENTAL COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY, KOTLA ROAD, NEW DELHI. * ADDL. R2 IS IMPLEADED AS PER ORDER DATED 22/05/2014 IN IA 6456/2014. R1 BY ADV. SRI.P.SREEKUMAR, SC, KERALA UTY. OF HEALTH SERVICES ADDL 2 BY ADV. SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5583 of 2014 (W) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 31-05-2012 PUBLISHED I N GAZETTE DATED 01-06-2012 EXHIBIT P2 TRUE COPY OF THE LETTER DATED 27-01-2014 ISSUED BY THE RESPONDENT EXHIBIT P3 TRUE COPY OF THE NON- CREAMY LAYER CERTIFICATE DATED 31-01-2014 ISSUED BY THE VILLAGE OFFICER, AROOKUTTY EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DATED 12-08-2013 ISSUED BY THE GOVERNMENT EXHIBIT P5 TRUE COPY OF THE LETTER DATED 12-02-2014 TO THE RESPONDENT RESPONDENT(S)' EXHIBITS :NIL --------------------------------------- /TRUE COPY/ P.A TO JUDGE AV **C.R.** ## **K.SURENDRA MOHAN, J.** **------------------------------------** W.P.(C) No.5583 of 2014 **-----------------------------------** Dated this the 3[rd] day of June, 2014 ## **J U D G M E N T** The petitioner is the Chairman of an Educational Agency and the Manager of a Self Financing Dental College that is conducted by the said agency. The name of the College is P.M.S. College of Dental Sciences & Research, Thiruvananthapuram. The petitioner has filed this writ petition aggrieved by the rejection of registration to one of its candidates who was admitted to the B.D.S. Course during the academic year 2013. Ext.P2 is the order of rejection. The candidate in question is Sl.No.15, a Muslim candidate belonging to the category of 'Other Backward Communities'. The reason for rejection is that, the percentile score of the candidate is below 50 in the National Eligibility-cum-Entrance Test (NEET). The candidate has been continuing her studies and is presently completing her first year, preparing to face her first year examinations. 2. According to the learned Senior Counsel, Sri.Kurian George Kannanthanam, the stipulation regarding percentile score is insisted upon by the 2[nd] respondent in Ext.P1 notification. The said notification stipulates that, in order to be eligible for admission to the B.D.S. Course during a particular year, a candidate should obtain a minimum of marks at 50[th] percentile. In the case of a candidate belonging to Scheduled Castes and Scheduled Tribes, Other W.P.(C) No.5583 of 2014 2 Backward Classes, the minimum marks shall be 40[th] percentile. The candidate in question being a Muslim candidate belonging to the category of 'Other Backward Classes', she is entitled to the benefit of the relaxation in minimum percentile in accordance with Ext.P1. However, the 1[st] respondent has taken up an objection that the said student had not produced her caste certificate or a non-creamy layer certificate for the purpose of claiming the benefit of the relaxation contained in Ext.P1, hence she was not entitled to the same. According to the counsel for the petitioner, the candidate is possessed of both a non-creamy layer certificate as well as the required caste certificate. The caste certificate dated 12.08.2013 had been produced at the time of her admission itself while the noncreamy layer certificate has been produced subsequently, when the objection was raised. Though the petitioner had produced Exts.P3 and P4 before the University, the University refused to accept the same stating that they had not been produced at the proper time. Though the petitioner has submitted Ext.P5 representation to the Registrar of the University, the same has not been considered so far. Therefore, he seeks the issue of appropriate directions for granting registration to the student. 3. Adv.Sri.P.Sreekumar appears for the 1[st] respondent. A statement has been filed by the 1[st] respondent in the writ petition. According to the counsel for the University, the benefit of W.P.(C) No.5583 of 2014 3 reservation to students in the various educational institutions under the University is extended not depending on whether he belongs to the 'Other Backward Classes' but depending on whether the candidate belongs to one of the communities that are designated as Socially and Economically Backward Communities (SEBC). The petitioner had not claimed any benefit on the basis that she belongs to one of the communities that came within the said category. It is pointed out that even according to the petitioner, a non-creamy layer certificate had not been produced by the student. The same was produced only at the last stage, which is not permitted. Since the candidate was not admitted to her course by the petitioner on the basis that she was a person belonging to the SEBC category, no relaxation on the basis thereof could be extended to her. The candidate in question was admitted in the NRI (Non Resident Indian) quota which is availed only by persons belonging to affluent families and therefore, the benefit of reservation cannot be extended to such candidates, it is contended. If the contention of the petitioner is accepted, it would give rise to managements of private educational institutions, filling up the management quota as well as the NRI quota with candidates who do not possess the required eligibility criteria. Therefore, it is contended that, the candidate concerned is not entitled to be admitted to the B.D.S. Course. W.P.(C) No.5583 of 2014 4 4. Adv.Sri.Titus Mani appears for the additional 2[nd] respondent. According to the counsel, in order to be eligible for admission to the B.D.S. Course in any particular academic year, it is necessary for a candidate to obtain the minimum marks at 50[th] percentile in the National Eligibility-cum-Entrance Test conducted for the said academic year. Though the candidate in question belongs to the category, Other Backward Classes (OBC), unless she falls within the non-creamy layer, she is not entitled to claim the benefit of reduction in the minimum eligibility criteria. The dictum of the Honourable Supreme Court in _**Indra Sawhney & ors v. Union of India & ors [1992 Supp(3)SCC 217]**_ is relied upon to contend that, a person belonging to the creamy layer, even if he belongs to the OBC category cannot be treated as belonging to the said class for the purpose of extending the benefits of the reservation policy. Since the candidate in question is not eligible to claim the benefits, it is contended that, her registration has been rightly rejected by the 1[st] respondent. 5. Heard. The facts in this case are not in dispute. It is not disputed that the candidate in question is a person who belongs to the Muslim community. Therefore, she is a person who belongs to the 'Other Backward Classes'. The question is whether only for the reason that she belongs to the Muslim community, she would be entitled to the benefit of the relaxation that is contained in Ext.P1. W.P.(C) No.5583 of 2014 5 According to the learned Senior Counsel, since the clause that entitles a person to a reduction in the minimum eligibility criteria does not stipulate any restriction regarding the income, no other restriction could be read into it. Per contra, the learned counsel for the 2[nd] respondent contends that the concept of Other Backward Classes is delimited by the restriction on income by virtue of which, a person who belongs to the creamy layer is left out of the category in question. 6. In order to address the above question, it is necessary to first consider the exemption that is contained in Ext.P1, Clause 6 (i) & (ii) of which are extracted hereunder : “In the existing Sub-regulation 5 of Regulation II, under the heading “Procedure for selection to BDS course shall be as follows :-” **shall be deleted and substituted** as under:- - “i. There shall be a single eligibility-cum-entrance examination namely “National Eligibility-cum-Entrance Test for admission to BDS course” in each academic year.” - ii. In order to be eligible for admission to BDS Course for a particular academic year, it shall be necessary for a candidate to obtain minimum of marks at 50[th] percentile in 'National Eligibility-cum-Entrance Test to BDS course' held for the said academic year. However, in respect of candidates belonging to Schedule Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40[th] percentile. In respect of candidates with locomotory disability of lower limbs terms of subregulation 4 above, after the commencement of these amendments, the minimum marks shall be at 45[th] percentile. The percentile shall be determined on the basis of highest marks secured in the All-India common merit list in “National Eligibility-cum-Entrance Test for admission to BDS course.” Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test held for any W.P.(C) No.5583 of 2014 6 academic year for admission to BDS Course, the Central Government in consultation with Dental Council of India may at its discretion lower the minimum marks required for admission to BDS Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the said academic year only.” A perusal of Clause 6(ii) shows that the minimum eligibility criterion has been fixed at 50[th] percentile in National Eligibility-cumEntrance Test to BDS Course held for the said academic year. The said minimum eligibility criterion has been relaxed in the case of persons belonging to: (1) Scheduled Castes - 2) Scheduled Tribes ## 3) Other Backward Classes. For the said category of persons, the minimum marks have been reduced to the 40[th] percentile. In the case of candidates belonging to Other Backward Classes, after the decision of the Constitution Bench in _**Indra Sawhney & ors v. Union of India & ors**_ **(supra)** , the benefits of reservation can be claimed only by candidates who do not belong to the creamy layer of the society. Therefore, the resultant situation is that, the term 'Other Backward Classes' has to be understood as taking in only those candidates who do not belong to the creamy layer. The above position has been reiterated by the Honourable Apex Court in the decision reported in _**Ashoka kumar Thakur v. Union of India and others**_ [ _**2008(6) SCC 1]**_ . A reading of Clause 6(ii) shows that the intention W.P.(C) No.5583 of 2014 7 in granting relaxation in the percentile marks was to confer certain benefits on persons belonging to the categories mentioned in the said Clause. They are the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Therefore, only candidates who come within the ambit of the said nomenclature are eligible to the benefits thereof. 7. In the present case, the candidate in question does not belong to the creamy layer as evident from Ext.P3 certificate. Ext.P4 certificate shows that she is a person who belongs to the Muslim community. Therefore, it is clear that the candidate was a person who was entitled to the benefit of the relaxation that is contemplated by Clause 6(ii) of Ext.P1. It is true that the petitioner had not produced the caste certificate Ext.P4 before the University. Nor was Ext.P3 submitted at the relevant point of time. However, the said omission cannot be held against the candidate for the reason that even the petitioner was not aware that the said certificates had to accompany her application for registration. Another aspect that requires to be taken note of is that, the candidate in question had been granted admission in the NRI quota and not in a Reservation quota. Since the candidate has produced the necessary certificates though not at the appropriate time, it is only appropriate that she is granted a registration and permitted to complete her course. She is already completing her first year, W.P.(C) No.5583 of 2014 8 having attended classes and studied during the past academic year. For the above reasons, this writ petition is allowed. The 1[st] respondent is directed to grant registration to the candidate by name Marayam Shameema, Sl.No.15 in Ext.P2, after accepting Exts.P3 and P4 certificates, for the B.D.S. Course that has commenced during the academic year 2013 and to permit her to appear for the examinations. Sd/- **K.SURENDRA MOHAN, JUDGE.** AV