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

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 ``` ``` WA NO. 455 OF 2022 ``` ``` AGAINST THE JUDGMENT IN WP(C) 12332/2021 OF HIGH COURT OF KERALA DATED 11.1.2022 ``` ## **`APPELLANTS/PETITIONER:`** ``` 1VOLGA K AGED 19 YEARS, D/O.SIVADASAN.K.K, KATTUNILATH HOUSE, PONNURUNNI, VYTILA.P.O, 682019, ERNAKULAM DISTRICT. ``` ``` 2SARAH MARIA.S.B, AGED 18 YEARS, D/O.SURESH BABU, THUNDITHARA, NEAR KARTHIKA HOSPITAL, AROOR.P.O, PIN-688534, ALAPPUZHA DISTRICT. ``` ``` BY ADVS. T.N.JAYADEVAN D.JOTHIKUMAR MINU SIBY ROY ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. ``` - `2 THE DIRECTOR OF TECHNICAL EDUCATION, PADMAVILASOM ROAD, FORT, NALUMUKKU, THIRUVANANTHAPURAM,PIN-695023.` - `3 THE SECRETARY TO THE GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.` - `4 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE.P.O,THIRUVANANTHAPURAM-695011.` _**W.A.455/2022**_ 2 - `5 THE COMMISSIONER FOR ENTRANCE EXAMINATION, 5[TH] FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR,THIRUVANANTHAPURAM, PIN-695001.` - `6 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY REPRESENTED BY REGISTRAR, CET CAMPUS, ALTHARA ROAD, AMBADY NAGAR, THIRUVANANTHAPURAM-695016.` - `7 KERALA UNIVERSITY OF HEALTH SCIENCES REPRESENTED BY REGISTRAR, MULANKUNNATHUKAVU, MEDICAL COLLEGE.P.O, PIN CODE-680596, THRISSUR.` - `8 KERALA AGRICULTURAL UNIVERSITY (KAU) REPRESENTED BY REGISTRAR, MAIN CAMPUS, VELLANIKKARA,THRISSUR-680656.` - `9 KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY,REPRESENTED BY REGISTRAR, POOKOT, LAKKIDI.P.O, WAYANAD-673576.` - `10 KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES REPRESENTED BY REGISTRAR, PANANGAD ROAD, MADAVAN JUNCTION, KOCHI-682506.` - `11 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.` ``` BY ADV SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES SRI.PRAMOD.P.G -GP ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.A.455/2022**_ 3 ## J U D G M E N T Dated this the 13[th] day of June, 2022 ## Shaji P. Chaly, J Petitioner in W.P(C). No.12332 of 2021 has filed the appeal challenging the judgment of learned Single Judge, dated 11.1.2022, where by the following reliefs sought for in the writ petition, were declined: “(i) Issue a writ of mandamus or any other appropriate Writ order or direction commanding the 1[st] respondent to notify in the Prospectus that reservation to Nominees, PWD and SR would be applied as per the horizontal reservation principles of the Apex Court and adjusted/accommodated against the Open Category, Economically Weaker Sections (EWS), OBC and SCST to which they belong. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction to the 1[st] and 5[th] respondents to compute mandatory reservation on the total number of seats (excluding AIQ) available with the State taken as a whole, without excluding the Nominees, PWD and SR Categories. (iii) Declare that enforcing clause 4.1.5 of Exhibit P1 without applying horizontal reservation principles settled by the Apex Court is discriminatory, arbitrary, unfair and violate of Article 14,15 and 21 of the Constitution of India.” 2. The brief facts for the disposal of the appeal are as follows: _**W.A.455/2022**_ 4 According to the appellants, they are eligible to appear for Kerala Engineering, Architecture and Medical Courses-2021 (KEAM-2021) and National Eligibility cum Entrance Test -NEET (UG)-2021 conducted by the National Testing Agency. It is also submitted that petitioners have registered for KEAM-2021. The case projected by the petitioners is that Clause 4.1.5 of the Prospectus KEAM-2021, is in violation of the horizontal reservation principles settled by the Hon'ble Apex Court in **Indra Sawhny and Others Vs. Union of India and Others (1992) Supp (3) SCC 217)** , **Anil Kumar Gupta and Ors Vs. State of UP and Ors (1995) 5 SCC 173)** , **Saurav Yadav & Ors v State of Uttar Pradesh & Ors** decided on 18.12.2020 (MANU/SC/0960/2020) etc. 3. According to the appellants, as per Clause 4.1.5 of the Prospectus KEAM-2021, leaving the seats set apart for All India Quota, Government of India Nominees, Persons With Disabilities, all types of supernumerary seats sanctioned, and Management Quota, and the remaining Government seats for each course in Govt./Aided/KAU/KVASU/KUFOS Colleges will be distributed as per the mandatory reservation principle as contemplated in G.O. (P) 208/66/Edn. dated 02.05.1966, G.O.(Ms) No.95/08/SCSTDD _**W.A.455/2022**_ 5 dated 06.10.2008, G.O.(Ms) No.10/2014/BCDD dated 23.05.2014 and as modified from time to time. 4. The case put forth by the appellants is that as per clauses 6.1(i), (ii) (d) of Exhibit P1 Prospectus, Nominees will be considered against "State Merit seats and they will not be eligible for Communal/Special/Persons with Disabilities reservation or any fee concession. 5. It is the case of the petitioners that reservations in favour of Government of India Nominees, Special Reservation and Persons With Disability are Horizontal Reservations under Article 15(1) of the Constitution of India. However, mandatory Reservation to Other Backward Classes and Scheduled Castes/Scheduled Tribes are Vertical Reservations under Article 15(4). It is further submitted that Horizontal Reservations cut across the Vertical Reservations, which causes serious prejudice to the petitioners and others. That apart, it is submitted that reservation of 5% seats to persons with disabilities is applied horizontally among open category, OBC and SC/ST to which they belong. Therefore according to the appellants, enforcing Clause 4.1.5 of Exhibit P1 prospectus, without applying horizontal _**W.A.455/2022**_ 6 reservation principles settled by the Apex Court is arbitrary, illegal and violative of the fundamental rights guaranteed under Part III of the Constitution of India. 6. In the writ petition, a detailed statement was filed by the Commissioner of Entrance Examination, refuting the allegations, claims and demands raised by the petitioners, wherein the intricacies of Exhibit P1 prospectus is narrated and further submitted that the reservation to the persons with disabilities is made in accordance with Section 32 of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as “Act 2016”) and the contentions raised by the appellants that principles contained in Section 34 of Act 2016 and Rule 11 of the Right of Persons with Disabilities Rules, 2017, would not be applicable in the case of admission to higher education and the said provisions only apply to the establishments of the Government for appointments to various posts. 7. Learned Single Judge, after considering the facts and circumstances and the law involved, has held that it is settled law that State can identify classes of persons who are having distinct characteristics or disadvantages and treat them separately under _**W.A.455/2022**_ 7 law; that 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; that the claim of the petitioners for reservation is traceable to Article 15, which is an enabling right; that the claim of the persons with disabilities is referable to a statute promulgated for the purpose of implementation of a Constitutional mandate and therefore, it is by virtue of the statute, Persons with Disability are treated as a homogenous class irrespective of social classification. That apart, it is also held that such a valid classification cannot be sought to be impeached by way of linking it with Article 16 or Article 15. That apart it is pointed out that as held by the Apex Court In **K.Duraisamy v. State of Tamil Nadu [(2001) 2 SCC 538],** it is possible to provide a separate quota for Persons with Disabilities candidates since the State is vested with powers to provide for a different channel in the matter of admission. It is thus challenging the legality and correctness of the judgment of learned Single Judge, the appeal is preferred. 8. We have heard learned counsel for the appellants Sri. D. Jothikumar, learned Government Pleader Sri. P.G. Pramod and _**W.A.455/2022**_ 8 perused the pleadings and material on record. 9. The sole question to be considered is whether any manner of interference is warranted to the judgment of learned Single Judge. 10. The the case of the appellants is founded on clause 4.1.5 of the prospectus issued by the State Government for KEAM courses in the year 2021, which reads thus: “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 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.” 11. On a reading of the said clause, it is clear that the provision is intended to leave the seats set apart for All India Quota, Government of India Nominees, Special reservations and Persons with Disabilities. The issue in respect of reservation for persons with disabilities is guided by Section 32 of the Act 2016, which reads thus: _**W.A.455/2022**_ 9 “32. (1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent. seats for persons with benchmark disabilities; (2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.” 12. In our considered opinion, Section 32 of Act 2016, is an independent provision by itself, by which all Government institutions of higher education and other higher education institutions receiving aid from the Government shall be bound to reserve not less than five per cent seats for persons with benchmark disabilities and it also makes it clear that persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education. Whereas, Section 34 of Act 2016 deals with reservation in every Government establishments for persons with disabilities, not less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled up with persons with benchmark disabilities as per the parameters propounded thereunder. _**W.A.455/2022**_ 10 13. Rule 11 of the Right of Persons with Disabilities Rules, 2017 relied upon by the appellants is intended to implement the provisions of Section 34 of Act 2016, dealing with reservation for appointment in Government establishments. Rule 11 reads thus: “ **11. Computation of vacancies** . - (1) For the purposes of computation of vacancies, four percent of the total number of vacancies including vacancies arising in the identified and nonidentified posts in the cadre strength in each group of posts shall be taken into account by the appropriate Government for the persons with benchmark disabilities: Provided that the reservation in promotion shall be in accordance with the instructions issued by the appropriate Government from time to time. (2) Every Government establishment shall maintain a vacancy based roster for the purpose of calculation of vacancies for persons with benchmark disabilities in the cadre strength as per the instructions issued by the appropriate Government from time to time. (3) While making advertisements to fill up vacancies, every Government establishment shall indicate the number of vacancies reserved for each class of persons with benchmark disabilities in accordance with the provisions of section 34 of the Act. (4) The reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.” _**W.A.455/2022**_ 11 14. The contention put forth by learned counsel for the appellant is that the principles contained in Section 34 of Act, 2016 and Rules 2017 shall be taken into account for the purpose of making reservation in higher education institutions. We are unable to agree with the same since the provisions of Section 32 and Section 34 are independent of each other to tackle different situations, as are deliberated above. 15. Moreover, Article 15 of the Constitution of India enables the State to make reservations for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. However, that will not stand in the way of the State Government complying with the statutory requirements contained in the Act 2016. This was exactly the position considered by the Apex Court in **K.Duraisamy v. State of Tamil Nadu** (supra), which the learned Single Judge has dealt with elaborately. 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 _**W.A.455/2022**_ 12 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 word “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 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.” ## 16. That apart, in **State of Madhya Pradesh and Others v.** _**W.A.455/2022**_ 13 **Gopal D. Tirthani and Others [(2003) 7 SCC 83]** , it was held that the State can provide for a separate and exclusive channels of entry or source of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations. Moreover, the Right of Persons with Disabilities Act, 2016 was brought into force to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto. It is on the basis of the principle adopted by the United Nations General Assembly, to protect and respect for inherent dignity, individual autonomy including the freedom to make one’s own choice and independence of persons and other principles to sustain equality of opportunity and to accept persons with disabilities as part of human diversity and humanity, that the Act was brought into force. Therefore, what is relevant and important is the reservation to be made to persons with disabilities under Section 32 of the Act 2016, wherein the interest that is sought to be protected is that of persons with disabilities as a homogenous class and not intended for protecting social disabilities as contemplated in Articles 15 and 16 of the Constitution of India. _**W.A.455/2022**_ 14 Thus to say, when the parliament intended the reservation to be made on the basis of benchmark physical disabilities, there is no scope for importing the principles of social disability into the arena for applying the theory of the horizontal reservation cutting across the vertical reservation, which is never an aspect comprehended by the law makers. Moreover when section 32 of the Act 2016 is clear and simple, and intended to make reservation for persons with benchmark disabilities, the appellants are not entitled to mince words into the said provision in order to apply the principles of law laid down by the Hon’ble Apex Court in it's various decisions under different context and circumstances. To put it otherwise, the Act 2016 is brought into force with the laudable object of rehabilitation, a process aimed at enabling persons with disabilities to attain and maintain optimal, physical, sensory, intellectual, psychological, environmental or social function levels, which is clear from Section 2(za) of the Act; and therefore, the relevance and the essence of the provisions of Act 2016 cannot be diluted by importing the theories of other reservations made on account of social disabilities. 17. Considering the facts, circumstances and the law _**W.A.455/2022**_ 15 involved in the subject matter, we are of the clear and considered opinion that the appellants have not made out any case of jurisdictional error or other legal infirmities justifiable to be interfered with in an intra court appeal filed under Section 5 of the Kerala High Court Act. Needless to say, writ appeal fails. Accordingly, it is dismissed. Sd/S. Manikumar, Chief Justice Sd/Shaji P. Chaly, Judge sou. _**W.A.455/2022**_ 16 ## **`APPENDIX OF WA 455/2022`** ## `PETITIONER ANNEXURES` ``` Annexure A1TRUE COPY OF THE PRINT OUT OF THE RELEVANT PAGE TAKEN FROM THE WEBSITE OF MEDICAL COUNSELING COMMITTEE(MCC). ``` ``` Annexure A2TRUE COPY OF THE PRINT OUT TAKEN FROM THE WEB SITE OF NATOINAL TESTING AGENCY(NTA). ``` ``` Annexure A3TRUE COPY OF THE ORDER G.O. (RT)NO.1572/2021/HEDN DATED 24.11.2021. ```