IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 27900 of 2008(U) --------------------------------------- PETITIONER: ------------------- RANIYA MOHAMMED, 19 YEARS, D/O.MOHAMMED KOYA , DOOR NO.36/1377C, KANARANKANDY, VENGERI PO. CALICUT. BY ADV. SRI.BABU KARUKAPADATH, SMT.M.A.VAHEEDA BABU, SRI.JAGAN GEORGE, SRI.K.A.NOUSHAD, SRI.P.G.PRAMOD. RESPONDENTS: ----------------------- 1. COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING NAGAR BUILDING, SANTI NAGAR, THIRUVANANTHAPURAM-695001. 2. STATE OF KERALA, REP. BY THE ADDL.CHIEF SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI. P.N. SANTHOSH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ON 07/10/2008, ALONG WITH W.P.(C). NO. 28013/2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.27900/2008-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MARK SHEETS ISSUED BY THE RESPONDENT TO 1ST PETITIONER. EXT.P.2: COPY OF THE RELEVANT PORTION OF THE PROSPECTUS. EXT.P.3: COPY OF THE RELEVANT PORTION OF THE CATEGORY/ COMMUNITY WIDE LIST PUBLISHED BY THE RESPONDENT. EXT.P.4: COPY OF THE RANK DETAILS PUBLISHED BY THE RESPONDENT DTD. 31/08/2008. EXT.P.5: COPY OF THE REPRESENTATIONS DTD. 08/09/2008 SUBMITTED BY THE PETITIONER. RESPONDENTS' ANNEXURES: ANNEXURE R1.A: COPY OF THE G.O. (MS).NO.116/2008/H.EDN. DTD. 27/09/2008. ANNEXURE R1.B: COPY OF THE LETTER NO. 34108/S3/2008/H&FWD DTD. 16/09/2008. //TRUE COPY// P.S. TO JUDGE. prv. V.GIRI, J. ------------------------- W.P.(C).Nos.27900, 28013, 28919 & 29461 of 2008 ------------------------- Dated this the 6th day of October, 2008. JUDGMENT The petitioner in W.P.(C)No.28013/08 belongs to a Scheduled Caste Community. The petitioners in the other writ petitions belong to the Muslim Community. All the petitioners have participated in the Common Entrance Examination conducted by the Commissioner for Entrance Examinations for admission to the MBBS course for the year 2008. 2. The common grievance sought to be highlighted by them are two fold. Firstly, the number of seats available in Government quota in the Self-financing Colleges in the State, which the Government itself decided, was to be filled up by applying the principles of reservation and the protocol outlined in the prospectus for allotment of MBBS seats in the Government Colleges and Government controlled Self-financing Colleges should have been added to the seats in the Government colleges and consequently the Government seats in the Self-financing Colleges should be treated as one unit along with the WP(C).No.27900 of 2008 & Con. cases. :: 2 :: seats in the Government colleges. Secondly, the principles of reservation, which the Government was bound to implement, should be implemented in its letter and spirit and the objectives sought to be achieved by the principles of reservation would be subserved only if such seats in the Self-financing Colleges which are to be filled up as Government quota are considered on a par with the Government colleges and the Government controlled Self-financing Colleges. 3. It is necessary to refer to the different clauses in the prospectus. Clauses 2.1.1A and 2.1.1B of the prospectus read as follows: “2.1.1(a) Government seats are available in all the Govt. and Aided Colleges. 2.1.1(b) The availability of Government seats in Self-financing Colleges run by institutions under Govt. control and other Private Self- financing Colleges will be notified separately.” 4. Clause 4.1.5 of the prospectus deals with the mandatory reservation and the same reads as follows: WP(C).No.27900 of 2008 & Con. cases. :: 3 :: 4.1.5 Mandatory Reservation: Leaving the seats set apart for All India Quota, Government of India Nominees, Special reservation, Persons with Disabilities and Management, the remaining Government seats for each course in Govt/Aided/KAU Colleges will be distributed as per the mandatory reservation principle as contemplated in G.O.(P) No.208//66/Edn. Dated 2.5.1966, as modified from time to time.” 5. Clause 5.4.1 which defines in State merit (SM) states that the same will be filled up purely on merit (State-wide) Basis irrespective of the category/community to which the candidates belong. This, therefore, means that where a candidate manages to get an admission, on the strength of his merit, then the community to which he belongs to a reserved community will be of no consequence. In other words, where a candidate who belongs to a reservation community gets admission to the course, the seat which is otherwise available to the community does not get exhausted. WP(C).No.27900 of 2008 & Con. cases. :: 4 :: 6. This principle is again amplified in Clauses 11.8.1 and 11.8.2 of the prospectus. The same read as follows: 11.8.1 Admission & Allotment: A distinction will be made between 'Admission' to a course and seat 'Allotment' to a college. Admissions will be first offered under State Merit (SM) ever to candidates having eligible reservation benefits as per mandatory reservation, so long as vacancies are available under the same, statewide. Only after all the 'State Merit' vacancies are exhausted across the State, seats will be offered under the candidate's eligible reservation quotas under mandatory reservation. 11.8.2 State Wide Principle of Allotment in Government/Aided/KAU Colleges, Admission/Allotment of seats in Government/ Aided/KAU Colleges is governed by a 'state-wide' principle of selection approved by the Government of Kerala in G.O. (MS)No.122/98/HEdn dated 7.10.1998. According to the G.O., 'Candidates of the reserved category who will otherwise come in the open merit list will be allotted to the college of his choice provided he would have been eligible for allotment to that college if he was treated as candidate coming under WP(C).No.27900 of 2008 & Con. cases. :: 5 :: reservation quota. While a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission to the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate'. As per the above principle, all seats available for allotment by CEE in Government/Aided/KAU Colleges for a particular course/branch (Eg: MBBS under Medical stream of Electronics & Communication under Engineering stream) available in all the Government and Aided colleges put together will be computed state- wide and the total seats so obtained for each course in these colleges together, will be distributed statewide for the different categories by applying the mandatory reservation principle as mentioned in clause 4.1.5.” 7. There is no serious dispute (except in the case of scheduled caste candidates) that the principles of reservation as such contemplated by Clauses 11.8.1 and 11.8.2 have been applied in the case of admission to the MBBS course in the WP(C).No.27900 of 2008 & Con. cases. :: 6 :: case of Government colleges and Government controlled Self-financing Colleges on one hand and other Self-financing Colleges on the other. But the grievance, which has been projected by the petitioners and vehemently put forth by Sri.Babu Karukapadath, learned counsel for the petitioners, is that the Government seats in the Self-financing Colleges should have been tagged along with the seats in the Government Medical Colleges and the Government Seats in the Government Controlled Self-financing Colleges and the principles of reservation, as mentioned in Clauses 11.8.1 and 11.8.2, should, thereafter, have been applied to the entirety of seats as such. 8. Government has filed a counter affidavit in W.P.(C)27900/08, which has been adopted for the other writ petitions also. It is contended that the prospectus itself made it clear that the seats in the Government Medical Colleges and Government controlled Self-financing Colleges will be filled up in the manner provided in the prospectus. Reference is made to Clause 11.9 of the prospectus, which reads as follows: WP(C).No.27900 of 2008 & Con. cases. :: 7 :: “11.9 Seat allotment protocol in Self- financing Colleges: will be notified separately”. 9. The allotment to the Self-financing Colleges was dealt with by the Government separately and the Government the Government had entered into an agreement with the Self-financing Colleges' Management Association and on 17.6.2008. G.O.(Rt)No.2243/08/H&FWD dated 28.6.2008 was also issued in this regard. 50% of the seats in the colleges were to be filled up from the qualified candidates from the Common Entrance Test conducted by the Commissioner for Entrance Examinations with merit and applying the principles of reservation in the Government colleges. The Government order also deals with the manner in which the list has to be prepared and published. They are not strictly relevant for the present issue. 10. Allotment of seats in the Government Colleges and Government controlled Self-financing Colleges is, therefore, dealt with in the prospectus, which makes it clear that the protocol in the said colleges are governed by the provisions of the prospectus. The protocol WP(C).No.27900 of 2008 & Con. cases. :: 8 :: insofar as the allotment to the Self-financing Colleges are, therefore, to be dealt with separately. In such circumstances, it is difficult to accept the contention of the petitioners that the merit seats in the Self- financing Medical Colleges are to be taken up along with the seats in the Government Medical Colleges and they are to be treated as one composite unit. The principles of reservation as are contained in Clause 11.8.1 and 11.8.2 of the prospectus have admittedly been applied while filling up the seats in the merit seats of the Self-financing Colleges also; i.e., vide G.O.(Rt) No.2243/08/H&FWD dated 28.6.2008 which specifically provides for the same. The Government thought it appropriate that the principles of reservation be applied in the merit seats in the Self-financing Colleges and they have been so done. That is different from saying that the merit seats in the Self-financing Colleges should be treated as one composite unit along with the seats in the Government Medical Colleges. I am unable to accept the submission made by learned counsel for the petitioners. WP(C).No.27900 of 2008 & Con. cases. :: 9 :: 11. Mr.Babu Karukappadath points out with reference to the list drawn by the Commissioner for Entrance Examinations for the MBBS course, 2008, that the rank of the candidate from the Muslim Community, who come at the bottom, along with the allottees of the Government Medical Colleges is 802. It is pointed out that if the merit seats in the Self-financing Colleges are also treated as one composite unit and then the principles of reservation contained in Clauses 11.8.1 and 11.8.2 are applied in relation to the said composite unit, then it would have resulted in a situation where a meritorious among the candidates from the community would have obtained admission on the strength of their own merit and therefore, the corresponding number of students from the same community would have been able to secure admission. He submits that this would have been in consonance with the principles of reservation and the objectives behind it. Learned Government Pleader submits that the counter affidavit will show that even applying the principles of reservation, 84 students from the community have secured admission in the WP(C).No.27900 of 2008 & Con. cases. :: 10 :: Government colleges and that 24 students have secured admission in the Self-financing Colleges in the reservation quota. 8% of the seat from the same community have been admitted in Government controlled Self-financing Colleges. 12. It was open to the Government to treat the allotment of the seats in the Government colleges separately from the allotment to the Self-financing Colleges. In other words, sans the agreement which the Government had entered into with the Association of Self-financing Colleges, the allotment to the Self-financing Colleges could still have been worked out differently. In such circumstances, it will have to be acknowledged that the application of the principles of reservation as contained in the prospectus, at least to a specific number of seats in the Self-financing Colleges will have to be acknowledged as a step taken by the Government affirming the principles of reservation as such. It is not a step which is derogatory to the principles of reservation. May be it is true that more seats might have come to the community which claims reservation, had the merit seats in the WP(C).No.27900 of 2008 & Con. cases. :: 11 :: Self-financing Colleges been treated as a composite unit, along with the seats in the Government Medical Colleges. But, it is obviously a matter of policy of the Government to adopt one course in preference to the other. All that this court is in a position to say is that the method of allotment followed by the Government in this case of treating the seats in the Government Medical Colleges as distinct from the merit seats in the Self-financing Colleges does not suffer from any illegality or unconstitutionality. 13. Insofar as the contention raised by the petitioner in W.P.(C)No.28013/08, who belongs to the Scheduled Caste Community is concerned, she is aggrieved by the fact that the seats which are reserved for Scheduled Tribe Community and which are unfilled, should have reverted for the benefit of the Scheduled Caste Community in terms of Clause 5.5.1. The said clause of the prospectus reads as follows: “5.5.1 The seats unavailed by the Scheduled Castes candidates will go the Scheduled Tribes candidates and vice versa.” WP(C).No.27900 of 2008 & Con. cases. :: 12 :: 14. The stand taken by the Government is reflected in paragraphs 12 and 13 of the counter affidavit, which read as follows: 12. In the case of Surumi Sagar T, [WPC NO.28013/08] the petitioner had appeared for Medical Entrance Examination with Roll No.153032 and has secured a rank of 4636. as per Mandatory Reservation Principle 8% of the seats are served for SC category. As per the last allotment made on 27.09.2008 by this respondent 53 setas in Government Medical Colleges have been allotted to SC category satisfying the mandatory reservation principle. In Government controlled self financing college 9 seats have been allotted. In the Private Self Financing Medical Colleges 24 seats out of 295 seats are allotted to SC category. Thus this respondent has fulfilled the percentage of reservation for SC category in the allotment as per Prospectus conditions. 13. The candidate has secured a rank of 4636 which is far below the last rank for SC category in any type of Medical Colleges. (Last Rank for Sc in Government Medical College 3308, Government Controlled Self Financing College 3635, Private Self Financing College 4329). Hence she was not eligible to get allotment.” 15. I find substance in the contention raised by the petitioner that the provision for WP(C).No.27900 of 2008 & Con. cases. :: 13 :: reversion of the unfilled seats allotted to the SC/ST to one or either of the communities, as the case may be, has not been correctly followed. I would have considered the issue and issued a direction for enforcement of the said clause in the prospectus, but for the fact that the Government Pleader points out that the State has already made a motion before the Hon'ble Supreme Court for extension of the time for allotment of candidates to the SC/ST quota beyond 30.9.2008 and for permission to fill up the unfilled seats allotted to the Scheduled Tribe community, from among the members of the ST community, even if they do not strictly satisfy the minimum qualifications prescribed in that regard by the Commissioner for Entrance Examinations. In these circumstances, the contention taken up by the petitioner in W.P.(C)No.28013/08 is left open to be agitated, if necessary and if maintainable, at a later stage, depending upon any order to be passed by the Supreme Court on the motion made by the State Government. 16. There is yet another contention raised by Mr.Babu Karukappadath to the effect that in WP(C).No.27900 of 2008 & Con. cases. :: 14 :: filling up the seats in the Self-financing Colleges, the authority competent to allot candidates has not followed the principles of reservation. It is contended that the candidates belonging to the community should have been first allotted against the merit seats, if they were otherwise eligible, on the strength of their ranking and it is only if they are not otherwise eligible on the strength of their ranking they should have been considered for allotment against the reserved seats for the minority community. In principle, this contention is correct. But, I refrain from going into the specificity of these contentions especially for two reasons. Firstly, the allotment to the seats have been completed and going by the deadline fixed by the Supreme Court, no allotment can be made beyond 30.9.2008. Secondly, the seats have been filled up and if the correctness of the allotment made to the different seats to the different Self-financing Colleges are to be ascertained, then the students who have been so allotted and who are pursuing their studies will be adversely affected if the relief sought for in this writ petition is WP(C).No.27900 of 2008 & Con. cases. :: 15 :: granted. No such candidate is made a party in this writ petition. In these circumstances, I do not think it appropriate to consider the contentions of the petitioner in these proceedings, but I reiterate that if the clause in the prospectus remains as it is now, as contained in clauses 11.8.1 and 11.8.2 and the principles of reservation are applied to the merit seats in the Self-financing Colleges, then if a candidate who belongs to a reserved community is otherwise entitled to a seat on the strength of his/her own merit, then obviously he/she is entitled to admission on the basis of his/her merit and not against the minority seats to the reserved community. 17. This takes me to another aspect, which has been highlighted by learned counsel for the petitioner. In the nature of the serious disputes that are being raised every year with recurrence in the matter of allotment of seats in the Medical Colleges, it would only be appropriate that the first and final list of allotment be published well ahead of 30th September every year so that complaints, if any, in the method of WP(C).No.27900 of 2008 & Con. cases. :: 16 :: allotment or qua any specific allotment, as such, if raised can be verified and if possible, proper remedial measures taken well ahead of the deadline. This aspect shall be borne in mind by the Government and the Commissioner for Entrance Examinations, while preparing the prospectus and while going ahead with the allotment of seats as such. It is made clear that the list of allotment and the select list should be published by the Government and the Commissioner for Entrance Examinations in the ensuing year well ahead of the deadline of 30th September. Subject to the above observations, the writ petitions are dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy//