Volga K and Sarah Maria S.B. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943** **WP(C) NO. 12332 OF 2021** ## **PETITIONERS:** **1 VOLGA K AGED 19 YEARS D/O. SIVADASAN.K.K., KATTUNILATH HOUSE, PONNURUNNI, VYTILA P.O. 682 019, ERNAKULAM DISTRICT.** - **2 SARAH MARIA S.B., AGED 14 YEARS D/O. SURESH BABU, THUNDITHARA , NEAR KARTHIKA HOSPITAL, AROOR P.O. 688 534, ALAPPUZHA DISTRICT.** **BY ADVS. T.N.JAYADEVAN D.JOTHIKUMAR MINU SIBY ROY** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE DIRECTOR 0F TECHNICAL EDUCATION. PADMAVILASAM ROAD, FORT NALUMUKKU, THIRUVANANTHAPURAM 695 023.** - **3 THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** W.P.(C) No.12332/2021 : 2 : - **4 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE, P.O., THIRUVANANTHAPURAM 695 001.** - **5 THE COMMISSIONER FOR ENTRANCE EXAMINATION, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001.** - **6 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, REPRESENTED BY REGISTRAR, CET CAMPUS, ALTHARA ROAD, AMBADY NAGAR, THIRUVANANTHAPURAM 695 016.** - **7 KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY REGISTRAR, MULANKUNNATHUKAVU, MEDICAL COLLEGE P.O. 680 596, THRISSUR.** - **8 KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY REGISTRAR, MAIN CAMPUS, VELLANIKKARA, THRISSUR 680 656.** - **9 KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY, REPRESENTED BY REGISTRAR, POOKOT, LAKKIDI P.O., WAYANAD 673 576.** - **10 KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES, REPRESENTED BY REGISTRAR, PANANGAD ROAD, MADAVAN JUNCTION, KOCHI 682 506.** - **11 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** W.P.(C) No.12332/2021 : 3 : **BY ADVS. SHRI.N.MANOJ KUMAR, STATE ATTORNEY SRI.P.G.PRAMOD, GOVERNMENT PLEADER SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY SMT.AYSHA YOUSEFF, SC, KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.12332/2021 : 4 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.12332 of 2021 ````````````````````````````````````````````````````````````` _Dated this the 11[th] day of January, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioners are eligible for KEAM-2021 and NEET-UG 2021. The petitioners have registered for KEAM-2021. The petitioners state that Clause 4.1.5 of Ext.P1 KEAM Prospectus provides for reservation of 15% for All India Quota. These seats are allotted following reservation principles. Reservation of 5% seats for PWD is applied horizontally. 2. Clause 4.1.5 of Ext.P1 Prospectus reads as follows: “Mandatory Reservation: Leaving the seats set apart for All India Quota, Government of India Nominees, Special reservations, Persons with Disabilities, all types of supernumerary seats sanctioned and Management Quota, the remaining Government seats for each course in Govt./Aided/KAU/KVASU/KUFOS Colleges will be distributed as per the mandatory reservation principle W.P.(C) No.12332/2021 : 5 : as contemplated in G.O. (P) 208/66/Edn. dated 02.05.1966, G.O.(Ms) No.95/08/SCSTDD dated 06.10.2008, G.O.(Ms) No.10/2014/BCDD dated 23.05.2014 and as modified from time to time.” 3. The petitioners’ grievance is that enforcing Clause 4.1.5 of Ext.P1 without applying horizontal reservation principles settled by the Apex Court is arbitrary and violate the petitioners’ right to equality. 4. The learned Government Pleader entered appearance and resisted the writ petition. The Government Pleader argued that the writ petition is filed _inter alia_ challenging Clause 4.1.5 of the KEAM-2021 Prospectus. The point urged by the petitioners seems to be that leaving the seats set apart from All India Quota, which comes to 15%, the principle of mandatory reservation shall be applied in the remaining number of seats. In this regard, only Clause 4.1.5 of the Prospectus is brought under challenge in this writ petition. Clauses which provides for setting apart of seats in favour of nominees of the Government of India, nominees from Union Territories of Andaman Nicobar Islands, W.P.(C) No.12332/2021 : 6 : nominees from Lakshadweep and nominees from Jammu and Kashmir namely Clause 4.1.11 of the Prospectus are not under challenge. Likewise, Clause 5.3 of the Prospectus which provides for reserving seats for candidates with bench mark disabilities as stipulated in Section 32 of Persons With Disabilities Act, 2016 is also not under challenge. The principle of reservation can be applied only in respect of seats which are at the disposal of the State Government/Commissioner of Entrance Examinations. As can be seen from Clause 4.1.11 of the Prospectus, the seats mentioned therein are not at the disposal of the Government. 5. In the present case, the classification of Persons with Disabilities candidates and providing a separate quota is feasible under law and the principles of communal reservation need not be applied in that quota. There is nothing wrong in the State Government setting apart a definite percentage of educational seats exclusively for Persons with Disabilities candidates. W.P.(C) No.12332/2021 : 7 : 6. I Have heard the learned counsel for the petitioners and the learned Government Pleader representing the respondents. 7. Regarding Persons with Disabilities quota, it is settled law that the State can identify classes of persons who are having distinct characteristics or disadvantages and treat them separately under law. Persons having disability form a homogenous class by itself where disability is not on the basis of social backwardness but on the basis of physical disability. It is relevant to point out that the claim of the petitioners for reservation is traceable to Article 15 which is an enabling right. The claim of the PWD persons traces to a statute promulgated for the purpose of implementation of a Constitutional mandate. Therefore, it is by virtue of the statute, Persons with Disability are treated as a homogenous class irrespective of social classification. Such a valid classification cannot be sought to be impeached by way of linking it with Article 16 or Article 15 which does not apply. W.P.(C) No.12332/2021 : 8 : 8. Now, the next question is that whether it is possible to provide a separate quota for Persons with Disabilities candidates. It is settled principle of law that the State can provide for different channel in the matter of admission. In _**K.Duraisamy v. State of Tamil Nadu** [(2001) 2 SCC 538]_ , the Apex Court held as follows: i) The Government possesses the right and authority to decide from what sources the admissions in educational institutions or to particular disciplines and courses therein have to be made and that too in what proportion; ii) That such allocation of seats in the form of fixation of quota is not to be equated with the usual form of communal reservation and therefore, the constitutional and legal considerations relevant to communal reservations are out of place while deciding the case based on such allocation of seats; iii) That such exclusive allocation and stipulation of a definite quota or number of seats between in-service and non-service or private candidates provided two separate channels of entry and a candidate belonging to one exclusive quota cannot claim to steal a march into another exclusive quota by advancing a claim based on merit. Inter se merit of the candidates in each quota shall be determined based on the merit performance of the candidates belonging to that quota; iv) That the mere use of the work “reservation” per se is not decisive of the nature of allocation. Whether it is a reservation or an allocation of seats for the purpose of providing two separate and exclusive sources of entry would depend on the purpose and object with which the W.P.(C) No.12332/2021 : 9 : expression has been used and that would be determinative of the meaning, content and purport of the expression. Where the scheme envisages not a mere reservation but is one for classification of the sources from which admission are to be accorded, fixation of respective quota for such classified groups does not attract applicability of considerations relevant to reservation simpliciter. In the above circumstances, the writ petition is devoid of any merit and it is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/07.01.2022 W.P.(C) No.12332/2021 : 10 : ## **APPENDIX OF WP(C) 12332/2021** ## **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS KEAM 2021. Exhibit P2 TRUE COPY OF THE BOARD OF HIGHER SECONDARY EXAMINATION CERTIFICATE OF 1ST PETITIONER. Exhibit P3 TRUE COPY OF HIGHER SECONDARY EXAMINATION CLASS XI, MARCH 2020 SCORE SHEET OF THE 2ND PETITIONER. Exhibit P4 TRUE COPY OF THE HIGHER SECONDARY EXAMINATION MARCH 2201 SECOND YEAR ADMISSION TICKET OF 2ND PETITIONER. Exhibit P5 COPY OF ACKNOWLEDGEMENT OF ONLINE APPLICATION DT 20.6.2021. Exhibit P6 COPY OF ACKNOWLEDGEMENT OF ONLINE APPLICATION DT 15.6.2021. Exhibit P7 TRUE COPY OF THE EXTRACT OF RELEVANT RESERVATION OF SEATS AIIMS, NEW DELHI. Exhibit P8 TRUE COPY OF THE NOTICE U- 12021/06/2021-MEC DATED 29.07.2021. Exhibit P9 TRUE COPY OF THE LETTER NO.K2/230669/2020/DME DATED 08.03.2021 ALONG WITH ENGLISH TRANSLATION MEMO. Exhibit P9(A) TRUE COPY OF THE ALLOTMENT LIST ENDT.NO.K2/230669/DME/503 FOR MBBS AND BDS SEATS TO NOMINEES FOR THE ACADEMIC YEAR 2018-19. Exhibit P10 TRUE COPY OF THE LETTER NO.A1/3955/219/CEE/RTI DATED 10.10.2019 ALONG WITH ENGLISH TRANSLATION MEMO. Exhibit P10(A) TRUE COPY OF THE LETTER AND RELEVANT DOCUMENT NO.K2/131413/2019/DME/582 DATED 14.10.2019 ALONG WITH ENGLISH TRANSLATION MEMO.** **RESPONDENTS' EXTS** **R5(a) COPY OF GO DT 2.5.1966.** **R5(b) COPY OF JUDGMENT DT 4.3.2020 IN WPC.17558/2019.**