Case: Amina Marwa Sabreen (Minor ) Vs. The State Of Kerala

separately. But they will not be eligible for Communal/Special/Persons with Disabilities reservation or any fee concession. Non-Keralite Category II (NK II) candidates are not eligible for admission to Medical and Allied Courses including MBBS/BDS and for admission to Government Engineering Colleges. Note: The following category of candidates will not be governed by clauses (i), (ii) and (iii) above: Candidates to be admitted in respect of seats reserved for the nominees of Government of India, Administration of Union Territory of Andaman & Nicobar Islands, Lakshadweep Administration, Jammu & Kashmir, candidates selected through the All India quota seats for MBBS/BDS courses and candidates sponsored under reciprocal quota by Government of Karnataka/Tamil Nadu. 9) As is clear from the reading of the aforesaid provision, students seeking admission are put in three categories, namely, Keralite, Non-Keralite Category I (NK I) and Non-Keralite Category II (NK II). Insofar as NK I is concerned, though persons mentioned therein who come under that category are not of Kerala origin, they are also eligible to be considered against State Merit seats for certain courses, including medical courses. Further, NK II candidates are totally excluded from eligibility insofar as admission to medical and allied courses, including MBBS/BDS and for admission to Government Engineering Colleges is concerned. It is this provision which hits the petitioners and makes them ineligible for admission to medical courses. 10) Entire thrust of the argument of the petitioners was that the aforesaid G.O. dated January 30, 2017, which carves out NK II and makes them ineligible for admission to medical and allied courses, including MBBS/BDS, is unconstitutional as it is discriminatory and violative of Articles 14 and 15 of the Constitution of India. This document does not find a mention in the writ petition and not even filed along with the writ petition, but was filed as an additional document subsequent to the filing of the writ petition. In these circumstances, the preliminary submission which is raised by the learned senior counsel appearing for the State of Kerala was that when there is no prayer to quash the aforesaid G.O. dated January 30, 2017, it is not permissible for the petitioners to challenge the validity of this notification by way of oral arguments. We find substance in this preliminary objection raised by the respondent State. 11) We may mention that Mr. Dushyant Dave, learned senior counsel appearing for the petitioners, had made detailed submissions to attack the validity of the aforesaid G.O. and has cited various judgments in support. It may also be mentioned that respondent No.4, which is a minority institution, has supported the case of the petitioners by means of counter affidavit filed by it and at the time of oral hearing also Mr. Huzefa Ahmadi, learned senior counsel appearing for respondent No.4, made scathing attack on the vires of the said G.O. 12) It may also be mentioned that the learned senior counsel appearing for the State of Kerala also advanced detailed arguments refuting the submissions made by the petitioners as well as respondent No.4. He had submitted that there is an All India quota of 15% and in this quota students from all over India, on the basis of their merit, were entitled to get admission in the State run medical colleges as well as private aided and unaided medical colleges. He further submitted that after setting apart the aforesaid quota of 15% for students from all India, it was the prerogative of the State to take students from the State of Kerala alone in respect of the balance 85% seats as these colleges are State colleges and are not having national status. It was additionally submitted that the first phase of counselling to the State quota seats in MBBS/BDS courses in the State have already been completed in accordance with the time schedule fixed by the Medical Council of India and approved by this Court. In that counselling 262 candidates belonging to NK I category (who are otherwise non-Keralities) are given admission. The office of the Commissioner for Entrance Examinations is heading to the activities related to the second phase of counselling to the MBBS/BDS courses along with other medical and allied courses and the second round of allotment is scheduled to be published on August 18, 2017. In Kerala, a total of 1044 seats were available under MBBS course in nine Government medical colleges for allotment by the Commissioner for Entrance Examinations. Also a total of 2050 seats are available for allotment by the Commissioner in eighteen self financing medical colleges in the State of which twelve colleges are minority colleges. Of these twelve colleges, six each belong to Christian and Muslim minorities. He also argued that similar provisions are contained in other States as well, providing 15% seats/quota on All India basis and earmarking 85% seats for the natives. Submission was that the provision in the State of Kerala was more liberal where NK I category was carved out giving some representation to non-Keralites even against 85% quota. However, since we are accepting the argument of the State predicated on the maintainability of the writ petition, it is not necessary to deal with the submissions on merits. 13) Reverting to the preliminary objections raised by the respondent State, as already mentioned above, there is no reference to the G.O. in the entire writ petition. This document is not even part of the writ petition. Therefore, there are no foundational facts and/or pleadings in the writ petition challenging this G.O. as unconstitutional. More importantly, there is no prayer in the writ petition seeking quashing of this G.O. Even when learned counsel for the State had pointed out fundamental infirmity in the writ petition, no attempt was made by the petitioners to amend the writ petition so as to incorporate challenge to the said G.O. as well. In the absence of any pleadings and the prayer seeking quashing of the said G.O., it is not permissible for the petitioners to seek a relief by making oral submissions in this behalf.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7) From the aforesaid pleadings and prayers made in the writ petition, it can clearly be discerned that the petitioners are aggrieved by Press Release dated July 01, 2017 and the grievance is that insofar as minority institutions are concerned, they should not be included in the counselling process that is to be undertaken by the State. In that hue, further prayer is that the DGHS should conduction admission to minority medical institutions on All India basis9) As is clear from the reading of the aforesaid provision, students seeking admission are put in three categories, namely, Keralite,e Category I (NK I) ande Category II (NK II). Insofar as NK I is concerned, though persons mentioned therein who come under that category are not of Kerala origin, they are also eligible to be considered against State Merit seats for certain courses, including medical courses. Further, NK II candidates are totally excluded from eligibility insofar as admission to medical and allied courses, including MBBS/BDS and for admission to Government Engineering Colleges is concerned. It is this provision which hits the petitioners and makes them ineligible for admission to medical coursesThis document does not find a mention in the writ petition and not even filed along with the writ petition, but was filed as an additional document subsequent to the filing of the writ petition.In these circumstances, the preliminary submission which is raised by the learned senior counsel appearing for the State of Kerala was that when there is no prayer to quash the aforesaid G.O. dated January 30, 2017, it is not permissible for the petitioners to challenge the validity of this notification by way of oral argumentsWe find substance in this preliminary objection raised by the respondent StateHowever, since we are accepting the argument of the State predicated on the maintainability of the writ petition, it is not necessary to deal with the submissions on merits13) Reverting to the preliminary objections raised by the respondent State, as already mentioned above, there is no reference to the G.O. in the entire writ petition. This document is not even part of the writ petition. Therefore, there are no foundational facts and/or pleadings in the writ petition challenging this G.O. as unconstitutional. More importantly, there is no prayer in the writ petition seeking quashing of this G.O. Even when learned counsel for the State had pointed out fundamental infirmity in the writ petition, no attempt was made by the petitioners to amend the writ petition so as to incorporate challenge to the said G.O. as well. In the absence of any pleadings and the prayer seeking quashing of the said G.O., it is not permissible for the petitioners to seek a relief by making oral submissions in this behalf.