W.P.(C).No. 25374 of 2018, Dr. Johny Thomas & Linta John v. Administrator, Union Territory of Lakshadweep & Others

1 _**WP(C).25374/18**_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940** ## **WP(C).No. 25374 of 2018** ## **PETITIONER/S:** |**1**|**DR.JOHNY THOMAS**| |---|---| ||**S/O.MATHEW THOMAS, PRINCIPAL, GOVT. GIRLS SENIOR**| ||**SECONDARY SCHOOL, ANDROTT,LAKSHADWEEP - 682 551.**| |**2**|**LINTA JOHN**| ||**D/O.JOHNY THOMAS, UPPANIYIL**| ||**HOUSE,ARUNNOOTTIMANGALAM.P.O., KADUTHURUTHY,KOTTAYAM**| ||**- 686 604.**| ||**BY ADVS.**| ||**SRI.M.P.ASHOK KUMAR**| ||**SMT.BINDU SREEDHAR**| ||**SMT.R.S.MANJULA**| ||**SRI.P.C.GOPINATH**| ## **RESPONDENT/S:** |**1**|**THE ADMINISTRATOR (UNION TERRITORY OF LAKSHADWEEP)**| |---|---| ||**KAVARATHI - 682 555.**| |**2**|**THE DIRECTOR OF EDUCATION**| ||**UNION TERRITORY OF LAKSHADWEEP, KAVARATHI - 682 555.**| |**3**|**THE SECRETARY OF EDUCATION**| ||**UNION TERRITORY OF LAKSHADWEEP, KAVARATHI - 682 555.**| |**4**|**ADDL.R4.MEDICAL COUNCIL OF INDIA REPRESENTED BY ITS**| ||**SECRETARY**| ||**POKET-14, SECTOR-8, DHARAKA PHASE-1, NEW DELHI-**| ||**110077.**| |**5**|**ADDL.R5. GEORGE WILFRED**| ||**AGED 53 YEARS**| 2 _**WP(C).25374/18**_ **S/O.P.A.GEORGE, PARAMBILOTH, MALIPPURAM, ELAMKUNNAPUZHA, VYPIN, ERNAKULAM.** **6 ADDL.R6. SHELWIN GEORGE P.G. S/O.GEORGE WILFRED, P.G.FISHERIES INSTRUCTOR, GSSS AGATHY.** **ADDL.R4 IS IMPLEADED VIDE ORDER DATED 6.8.18 IN IA.NO.14233 OF 2018 ADDL.R5 IS IMPLEADED VIDE ORDER DATED 6.8.18 IN IA.NO.14279 OF 2018. ADDL.R6 IS IMPLEADED VIDE ORDER DATED 21.8.18 IN IA.NO.4 OF 2018.** **BY ADVS.** **SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA SRI.T.A.UNNIKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7.9.2018, THE COURT ON 12.09.2018 DELIVERED THE FOLLOWING:** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 25374 of 2018 ----------------------------------------------Dated this the 12[th] day of September, 2018** ## **JUDGMENT** The petitioners have approached this Court seeking the following reliefs: - _“i. issue a writ of certiorari or other appropriate writ or order quashing Exhibit P1 Rules._ - _ii. declare that the selection of candidates for MBBS against the seats reserved by Government of Kerala for the wards of Malayalees living in Lakshadweep should be based only on the ranking of a student based on the mark obtained in the National Eligibility Cum Entrance Test Examination and no grace mark based on place of study can be added along with NEET mark under any circumstances.”_ 2. It is submitted by learned counsel for the petitioners that Exhibit P1 executive order, which provides the eligibility criteria for selection to one seat reserved in Calicut Medical College for wards of Malayalees living in Lakshadweep is violative of Regulation 5(5)(i) and 5(5)V of the MCI Regulations as also against clauses 6.2.1, 1.4 (c) and 1.5 of Exhibit P2 prospectus and Exhibit P3 guidelines issued for admission. It is contended that the prospectus provides for regulation for 4 _**WP(C).25374/18**_ admission to professional courses by the order of merit assessed through a competent examination. It is stated that the competitive examination, i.e., National Eligibility Cum Entrance Test Examination (NEET) had been conducted this year and that the 2[nd] petitioner, who is daughter of the 1[st] petitioner, who is working as Principal in the Government Girls Senior Secondary School, Andrott, Lakshadweep, had secured 278 marks and an all India NEET score 213171. It is stated that she was entitled for admission in the one seat set apart since what was liable to be considered as academic eligibility for MBBS was the possession of 50% marks for Physics, Chemistry and Biology as also the merit in the NEET rank list. It is stated that Exhibit P3 information bulletin also specifically stated that single eligibility examination would be conducted for selection to the MBBS course and all India merit list will be prepared on the basis of marks obtained in NEET. It is submitted that admission will be made on the basis of the marks obtained in NEET examination alone. It is stated that where two candidates obtain the same marks, procedure for time breaking was also provided in Exhibit P3 information bulletin. It is stated that the provisions in Exhibit P1 for preparation of a list assigning grace marks to candidates for years of study in the Islands and for adding the grace marks to the marks obtained in NEET examination is totally violative of the provisions of the MCI Regulations which are made in terms of the Act in force. It is stated that the provision in Exhibit P1 to 5 _**WP(C).25374/18**_ the effect that the total marks obtained in Physics, Chemistry and Biology would be added to the weightage in the scale provided for duration of the candidate's schooling in the islands. It is stated that the 6[th] respondent is a student, who had obtained only 98 marks in NEET combined and 195 marks was added as weightage for the years of study in the islands. It is contended that the 2[nd] petitioner, who was a student having obtained 278 marks, has been excluded from consideration only by the grant of weightage marks to the 6[th] respondent. Learned counsel for the petitioners would place reliance on the decisions of the Apex Court in _**Asha v. Pt.B.D.Sharma University of Health Sciences and Others**_ [(2012)7 SCC 389], _**State of M.P. v. Gopal D.Tirthani**_ [(2003)7 SCC 83], _**Sankalp Charitable Trust v. Union of India**_ [(2016)7 SCC 487] and _**State of Uttar Pradesh v. Dinesh Singh Chauhan**_ [(2016) 9 SCC 749] to contend that the admission to undergraduate medical courses, at present, could only be on the basis of NEET rank list and any other prescription by Exhibit P1, which is merely an executive order, would be incompetent and illegal. 3. A detailed counter affidavit has been placed on record by the 1[st] respondent Lakshadweep administration. It is stated at paragraph 3 of the counter affidavit as follows: _“3. About the contentions in paragraph 3 of the statement of_ 6 _**WP(C).25374/18**_ _facts it is submitted that the Government of Kerala reserved a seat for MBBS degree course on the basis of the requests made by Keralites working in Lakshadweep during 1979. The reservation one seat was made for the reason that children of employees from Kerala working in Lakshadweep Islands are compelled to study in the schools available in Lakshadweep and therefore they were placed in a disadvantageous situation compared to students pursuing studies in Kerala. Exhibit P1 was issued by the Administrator of the Union Territory for selection of candidate for reserved seat keeping in mind object of providing reservation.”_ It is stated that selection of candidates for the seats reserved for wards of Malayalees working in Lakshadweep is not made solely on the basis of ranking in NEET. It is stated that grace marks as per Exhibit P1 are also to be taken into account. It is stated that inter se merit between wards of Malayalees residing in Lakshadweep who have completed their entire education in the main land and those students who have actually resided in the islands and have completed their education there, would result in serious anomalies and would amount to treating unequals as equals. It is contended that it was specifically to mitigate the difficulties of employees of the main land whose children have suffered the disabilities of studying in the islands that a seat had been set apart for such students. It is stated that the 6[th] respondent had completed his entire education in schools in the islands, while the 2[nd] petitioner had remained in the main land and had not studied in the islands even for a day. It is stated that in view of the purpose of providing reservation being 7 _**WP(C).25374/18**_ specifically to compensate for the difficulties undergone by the students by continuing the education in Lakshadweep, the 2[nd] petitioner could not even be considered as a student, who is eligible to be considered for the admission to the reserved seat. It is further contended that the Administrator is empowered to issue all competent orders in respect of the area of Lakshadweep and Exhibit P1, which is issued by the Administrator in exercise of his powers, is liable to be treated as a “law” applicable in respect of the students in Lakshadweep. The learned counsel has placed reliance on the judgment dated 22.9.2014 of a Division Bench of this Court in W.A.No. 1249 of 2014 relating to the allotment of candidates to the seat reserved in the Calicut Medical College for candidates of Kerala origin settled in Lakshadweep. It is stated that considering the provisions of the prospectus of 2014, the Division Bench held that the prospectus provides for reservation of one seat in the Calicut Medical College for “candidates of Kerala origin settled in Lakshadweep”. It is stated that 50% marks was the eligibility criteria. It was also provided in the prospectus of 2014 that only candidates who secure 50% marks in NEET will be considered for admission to MBBS/BDS course. The issue of weightage granted to wards of persons of Kerala origin who had studied in Lakshadweep islands was also considered by the Division Bench. The Division Bench came to the conclusion that the prospectus specifically stipulated that the candidates, for being eligible 8 _**WP(C).25374/18**_ for admission in the quota should pass the common eligibility test as prescribed under clause 6 thereof. Considering the contentions, it was stated that there was no question of departure from the qualifications prescribed by the MCI and that when the prospectus provides for reservation for persons of Kerala origin settled in Lakshadweep and indicates the manner in which selection is to be conducted, the petitioners cannot contend that a different method is to be adopted. 4. The learned counsel appearing for respondents 5 and 6 adopt the arguments of the 1[st] respondent. It is contended in the counter affidavit filed by respondents 5 and 6 that the 2[nd] respondent is not even eligible to apply for the seat earmarked for children of employees of Lakshadweep who belong to Kerala, since it is submitted that the 2[nd] petitioner had never studied in Lakshadweep and her family had also never settled in Lakshadweep pursuant to the 1[st] petitioner's employment there. It is stated that Exhibit P1 specifically provided for assessment of merit by adding the grace marks to the marks obtained in Physics, Chemistry and Biology. However, after introduction of NEET as a common criteria, it is stated that grace marks have been added to the marks obtained in NEET examination and the 6[th] respondent would therefore secure 294 marks which is more than the marks obtained by the 2[nd] petitioner in NEET examination. 5. The learned Standing Counsel for the Medical Council of India 9 _**WP(C).25374/18**_ would contend that the MCI Regulations with regard to the eligibility of candidates for admission to medical courses is binding in the matter of such admissions. It has been held by the Apex Court in _**Mridul Dhar v.**_ _**Union of India**_ [(2005)2 SCC 65] that merit determined by the competitive examination cannot be tinkered with by making a provision for grant of marks by mode of interview or any other mode. It is contended by the learned Standing Counsel that what is permissible is the carving out of a particular quota for candidates belonged to a particular category. However, within the quota, merit has to be assessed on the basis of ranking in the competitive examination and by no other method. 6. I have considered the contentions advanced on all sides at considerable length. It is the specific case of the petitioners that the marks in NEET examination alone was liable to be counted and as such, the 2[nd] petitioner, who had higher marks in NEET examination, would be eligible for admission to the reserved seat. I am of the opinion that what has to be looked into is the specific provision in the prospectus. The prospectus provides for reservation for persons of Kerala origin settled in Lakshadweep. The only meaning that can be attributed to relevant clause in the prospectus is that the student, to be eligible, should have been settled in Lakshadweep at least for some part of her/his life. This 10 _**WP(C).25374/18**_ apparently is the reason for the provision of grace marks for the number of years which the student has undergone education in Lakshadweep as well. It is apparent from a reading of the prospectus that reservation as of now, is specifically provided for candidates of Kerala origin who are residing in Lakshadweep. The 2[nd] petitioner in this writ petition has no case that she was ever a resident in Lakshadweep. The 1[st] respondent specifically pointed out that the reason for grant of reservation is the disability suffered by the students by reason of backwardness of the facilities of education. It is specifically argued before me that there are no coaching centres in Lakshadweep and that the standard of education offered to the students of Higher Secondary Schools in Lakshadweep is far different from the standard available in main land Kerala. In the light of the specific wording of the prospectus which provides for reservation of one seat for candidates of Kerala origin settled in Lakshadweep, I am of the opinion that the contention of the petitioner that the 2[nd] petitioner, who had much higher ranking in NEET would be eligible for admission to the reserved seat cannot be accepted for the simple reason that the 2[nd] petitioner has no claim that she was ever a resident in Lakshadweep or had ever studied in the islands. The 2[nd] petitioner and the 6[th] respondent are therefore not liable to be placed on the same standard for the assessment of merit. I am of the opinion that the admission already granted to the 6[th] respondent, who is an eligible 11 _**WP(C).25374/18**_ student going by the terms of prospectus and who has undergone his entire education in Lakshadweep need not be disturbed at this point in time at the instance of the 2[nd] petitioner who is unable to demonstrate that she is entitled to be considered for inclusion in the reserved seat going by the language of the prospectus. The writ petition therefore fails and is accordingly dismissed. **Sd/-** **ANU SIVARAMAN** **JUDGE** _vgs_ 12 _**WP(C).25374/18**_ ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE RULES FOR SELECTION OF CANDIDATES FOR MBBS COURSE AGAINST THE KERALA GOVERNMENT RESERVED SEAT FOR THE WARDS OF MALAYALEES LIVING IN LAKSHADWEEP OTHER THAN LOCAL INHABITANTS DATED 18.07.1979.** - **EXHIBIT P2 PHOTOCOPY OF THE PROSPECTUS FOR ADMISSION TO PROFESSIONAL DEGREE COURSES OF 2018(KEAM 2018).** **EXHIBIT P3 PHOTOCOPY OF THE CENTRAL BOARD OF SECONDARY EDUCATION NATIONAL ELIGIBILITY CUM ENTRANCE TEST UNIT INFORMATION BULLETIN FOR THE YEAR 2018-19.** - **EXHIBIT P4 PHOTOCOPY OF THE CBSE - NATIONAL ELIGIBILITY CUM ENTRANCE TEST (UG)-2018 RESULT OF THE 2ND PETITIONER.** **EXHIBIT P5 PHOTOCOPY OF THE CIRCULAR ISSUED BY DIRECTOR OF EDUCATION DATED 10.07.2018.** - **EXHIBIT P6 PHOTOCOPY OF THE APPLICATION ALONG WITH A FORMAT OF EMPLOYMENT CERTIFICATE SUBMITTED BY THE 2ND PETITIONER.** **EXHIBIT P7 PHOTOCOPY OF THE REPRESENTATION DATED 11.07.2018 BY THE 1ST PETITIONER TO THE DIRECTOR OF EDUCATION.** **EXHIBIT P8 PHOTOCOPY OF THE RELEVANT PAGES OF MCI REGULATIONS.** **EXHIBIT P9 PHOTOCOPY OF THE CONSOLIDATED LIST OF THE CANDIDATES APPLIED FOR THE MBBS SEAT RESERVED BY THE GOVERNMENT OF KERALA.** /true copy/ PS TO JUDGE