IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 24418 of 2010(B) ---------------------------------------- PETITIONER(S): ------------------------ 1. MARY CHRISTY KOOTHUR, D/O.ANTONY KOOTHUR,KOOTHUR,VELLATUKARA HOUSE, MULLASSERY PO, THRICHUR DISTRICT. 2. ATHIRA FRANCIS,VEMBALLIL HOUSE, KARTHIKAPURAM POST,VIA. ALAKKODE,KANNUR. 3. RESHMA RAGHUNATYH, THEKKE VEEDU, VANDAZHI POST, PALAKKAD. 4. ASWATHY V.S,SNRA-8,SREE VISAKH, INDIRA NAGAR,PEROORKADA PO, TRIVANDRUM. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): --------------------------- 1. PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION,SECRETARIAT,TRIVANDRUM-1. 2. PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT,TRIVANDRUM-1. 3. THE KERALA STATE SPORTS COUNCIL, THIRUVANANTHAPURAM-695 001,REPRESENTED BY ITS SECRETARY. 4. THE KERALA PRIVATE SELF FINANCING ENGINEERING COLLEGE MANAGEMENTS ASSOCIATION REPRESENTED BY ITS PRESIDENT,SEMS CAMPUS, MUTTAM, POST, ALUVA-683 101. 5. THE KERALA PRIVATE SELF FINANCING MEDICAL COLLEGE,MANAGEMENT ASSOCIATION DR.SOMAR WELL MEMORIAL MEDICAL COLLEGE CAMPUS, KARAKKONAM, TRIVANDRUM-1. R1 & R2 BY GOVERNMENT PLEADER SRI.M.A. ASIF R3 BY ADV. PIRAPPANCODE V.S.SUDHEER,SC,SPORTS COUNCIL R4 BY ADV. SRI.TONY GEORGE KANNANTHANAM R5 BY ADVS.SRI.R.T.PRADEEP, SRI.V.VIJULAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.24418/2010 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CERTIFICATE DTD. 9/08/2009 IN THE NAME OF THE 1ST PETITIONER. P2: COPY OF THE CERTIFICATE IN THE NAME OF THE 1ST PETITIONER DTD. 27/07/2008. P3: COPY OF ...DO..DO... DTD. 28/06/1992. P4: COPY OF ..DO..DO.. DTD. 26/12/2009 IN FAVOUR OF THE 2ND PETITIONER. P5: COPY OF ..DO..DO.. IN FAVOUR OF THE 3RD PETITIONER DTD. 23/02/2009. P6: COPY OF THE RELEVANT PAGES OF THE PROSPETUS FOR THE YEAR 2009. P7: COPY OF ..DO.... FOR THE YEAR 2010. P8: COPY OF THE REPRESENTATION BY THE MOTHER OF THE 1ST PETITIONER. P9: COPY OF THE SPORTS QUOTA CATEGORY COMMUNITY-WISE LIST (PROVISIONAL). P10: COPY OF THE NEWS ITEM IN THE MALAYALA MANORAMA DAILY DTD. 11/06/2010. P11: COPY OF ..DO... DTD. 9/06/2010 IN THE MATHRUBHUMI DAILY. P12: COPY OF ..DO... DTD. 10/06/2010 IN THE INDIAN EXPRESS. P13: COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.112/2010/H.EDN. DTD. 9/06/2010. P14: COPY OF THE ORDER DTD. 12/07/2010 IN WP(C) NO.18806 OF 2010. P15: COPY OF THE ORDER G.O.(RT) NO.1499/10/H/EDN. DTD. 27/07/2010. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE AGREEMENT DTD. 31/05/2010 ENTERED BETWEEN THE GOVERNMENT OF KERALA AND THE KERALA SELF FINANCING ENGINEERING COLLEGE MANAGEMENTS' ASSOCIATION. R1(B): COPY OF THE AGREEMENT DTD. 09/06/2010 ENTERED BETWEEN THE GOVERNMENT OF KERALA AND THE KERALA SELF FINANCING MEDICAL COLLEGE MANAGEMENTS' ASSOCIATION. Kss ..2/- ..2.... WPC.NO.24418/2010 B R1(C): COPY OF G.O.(MS)NO.110/10/H.EDN. DTD. 03/06/2010. R1(D): COPY OF G.O.(MS) NO.2431/2010/H&FWD DTD. 19/06/2010. R1(E): COPY OF ANNEXURE II (2) OF THE PROSPECTUS FOR THE YEAR, 2010. R1(F): COPY OF ANNEXURE III(2) OF THE PROSPECTUS FOR THE YEAR, 2010. R1(G): COPY OF ANNEXURE IV(2) OF THE PROSPECTUS FOR THE YEAR,2010. R1(H): COPY OF ANNEXURE V(2) OF THE PROSPECTUS FOR THE YEAR, 2010. R1(I): COPY OF ANNEXURE VII(2) OF THE PROSPECTUS FOR THE YEAR, 2010. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ================ W.P.(C) NO. 24418 OF 2010 (b) ===================== Dated this the 17th day of September, 2010 J U D G M E N T Petitioners are candidates who had appeared for the common entrance examination in pursuance to the prospectus for admission to the Professional Degree Course, Kerala 2010. Being sportsmen, they applied for inclusion in the ranked list for seats under the sports quota. Accordingly, they were included in Ext.P9 ranked list. It is stated that, at the time when the prospectus was published, agreement with the managements of the Private Self Financing Colleges were not entered into and therefore anticipating that contingency, in the prospectus, it was provided in Clause 5 (2) (vii) that seats under Special Reservation in Self Financing Colleges, if available, will be notified separately. It is also stated that in the Annexures to the Prospectus, it was provided that seats under the Special Reservation in Self Financing Colleges will be notified separately. 2. Petitioners submit that subsequent to the publication of Ext.P9 ranked list, Ext.R1(a) agreement was entered into between the Government and the managements of the Private WPC No. 24418/10 :2 : Self Financing Engineering Colleges and Ext.R1(b) with the Self Financing Private Medical Colleges. They complain that despite the agreements, seats under the special reservation in Self Financing Colleges were not notified as undertaken in the Prospectus. Seeking issuance of the notification, they submitted Ext.P8 representation to the Government. Pursuant to the directions of this Court, they were heard and the representation was considered. Accordingly, Ext.P15 order was passed rejecting the representation, para 4 of which reads as under; Government after hearing the petitioners examined all the relevant record and facts. There are 18 categories under special reservation in the prospects. Any change in the quotas of one category should apply to all the others, the allotment process of the medical seats in the Government and Government controlled self financing colleges is already over. As far as private self financing engineering colleges are concerned Government have already entered into agreement with the Management Association. As per the agreement there is no provision for reservation of seats for special categories, including sports. There are also Self Financing Engineering Colleges in the Private sector which have not entered into agreement with the Government. Any major change in the prospects at this stage will cause substantial dislocation and confusion in the allotment process. 3. It is challenging this order and seeking the issuance of the notification for the seats under the special reservation, the WPC No. 24418/10 :3 : writ petition is filed. 4. Counsel relied on the provisions of the prospectus and contended that Clause 5(2)(vii) referred to above was incorporated in the Prospectus in anticipation of the agreement with the Private College Managements, and that, therefore, oblige the Government to issue a notification. It was further contended that Clause 7(i) of Ext.P13 Government Order issued following the agreements with the Private College managements also provided that in the matter of allotment to the 50%, Government College reservation principles will be followed. It is stated that for all purposes, the reservation principles mentioned in Ext.P13 should also include, apart from statutory reservation, special reservation as well. Referring to the provisions of the Prospectus, he also contended that for the purpose of preparation of the ranked list for sports quota, the seats in the Private Colleges were also reckoned. Therefore, according to the learned counsel, it was impermissible for the Government to take the stand that for want of provision in the agreement with the managements, special reservation for sports quota could not be provided. 5. Learned Government Pleader contended that allotment WPC No. 24418/10 :4 : to the seats in the colleges are already over. Apart from that, according to the learned Government Pleader, the prospectus only provided that the Government will notify the seats under special reservation in Self Financing Colleges only if it is available. It is stated that both in Exts.R1(a) and in Ext.R1(b) agreements with the Private College Managements, though reservation to other various categories are provided, there is no provision for seats under the special reservation. Learned Government Pleader contended that State is under no obligation, be it statutory or contractual, to provide special reservation to any category and therefore no candidate can claim any fundamental or statutory right to compel the State to provide such reservation. It is also contended that in pursuance to the agreements, the Government issued Ext.R1(c) Government Order governing admission to Engineering Colleges. It was pointed out that though this Government Order provided for statutory reservation, there is no provision for special reservation. According to him, same was the position in respect of Ext.R1(d) governing admission to Medical Colleges, which also did not provide for any special reservation. He therefore contended that Clause 7(i) of Ext.P13 issued in WPC No. 24418/10 :5 : pursuance to Ext.R1(c) referred to above only intended to comply to statutory reservation and not special reservation. 6. On behalf of the 4th respondent, learned counsel contended that the seats are already filled up. Adopting the arguments of the learned Government pleader, counsel contended that the petitioners have no fundamental or legally enforceable right to compel the authorities to provide special reservation. Yet another argument raised by the learned counsel for the 4th respondent was that as is evident from Ext.P13 relied on by the counsel for the petitioners, the Government could allot candidates to Colleges in the Private sector only as per the provisions of Exts.R1(a) and R1(b) agreements. It is stated that so long as these agreements did not provide for special reservation, even the Government could not depart from the agreement and allot students to the colleges. 7. I have considered the submissions made. 8. The right of the candidate to seek admission is governed by the conditions of the Prospectus. In this case, Clauses 5(2)(vii) of the prospectus only provided that seats under special reservation in Self Financing Colleges, if available, will be WPC No. 24418/10 :6 : notified separately. This provision is reiterated in Annexures to the Prospectus also. Therefore, the question of notification arises or the obligation of the Government to issue a notification reserving seats under the special reservation category arises, only in a situation where seats are available for such notification. Admittedly, allotment of students to Self Financing College is made by the Government based on the provisions of Ext.R1(a) and Ext.R1(b) agreements that were entered into with the managements. Petitioners have no case that these agreements provided for any special reservation. It is for this reason that the representation made by the petitioners were rejected by the Government as per Ext.P15 also. Therefore, I am inclined to agree with the plea of the learned Government Pleader that in the absence of a provision in the agreement obliging the State to provide for special reservation, the Government was not obliged to issue a notification as provided in Clause 5(2)(vii) of the prospectus. 9. Apart from that, Clause 15 of Ext.P13 Government Order translating the agreement into order of the Government reads as under; WPC No. 24418/10 :7 : In view of the above, the Commissioner for Entrance Examinations shall accept options and make allotments to all the member colleges covered under the agreement read as fourth paper above in accordance with the terms of the agreement entered into by the Kerala Self Financing Engineering College Managements' Association with the Government. 10. A reading of this provision, which is not under challenge in this writ petition, shows that Government can also allot students to the Private Medical Colleges only in accordance with the provisions of Exts.R1(a) and R1(b) agreements. Therefore, so long as these agreements do not provide for special reservation, it was impermissible for the Government also to have alloted students under the special reservation category. For that reason also, the claim of the petitioners is unsustainable. 11. True, as contended by the learned counsel for the petitioner, Clause 7(i) of Ext.P13 provided that reservation principles will be followed in the allotment of students to the 50% government quota. However, in the facts as noticed above, the expression reservation principles should be understood as statutory reservation and not special reservation. It is also true that for the preparation of the ranked list, the seats in the Government Sector were also reckoned. A reading of the relevant WPC No. 24418/10 :8 : provision of the prospectus shows that number of seats available in both the Governments Colleges and the Private Colleges were to be multiplied by 7 and those who come within the figure arrived at are included in the special reservation ranked list. However, such a provision is only for the preparation of ranked list and do not oblige the Government to provide seats in the Private Colleges in violation of the principles of the agreement, which was entered into between the Government and the Private Sector Managements. 12. Irrespective of all this, fact remains that there is no statutory provision obliging the Government to provide for special reservation. If that be so, in my view, nobody can compel the Government to provide for special reservation. For that reason also, I do not find any enforcible right for the petitioners to seek a writ of mandamus against the Government to provide special reservation. For all these reasons, Ext.P15 deserves to be upheld and the writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE Rp