SHILPA S. JAYADEV Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ petition is filed in the year 2021 for getting admission for MBBS course based on an application submitted by the petitioner for the academic year 2018-2019. The petitioner is a member of the Scheduled Caste community. The short point raised by the petitioner is that the reservation of seats available to the Scheduled Castes/Scheduled Tribes Community for the professional degree course is to be computed based on the total number of seats available for the course. I will briefly state the case of the petitioner in the following paragraphs.

(2.) The petitioner submitted an application for getting admission as per Ext.P9 prospectus KEAM for the academic year 2018-2019. In the 1st phase of allotment as per the prospectus, the petitioner obtained BDS seat in Dental College, Pariyaram, Kannur. The petitioner submitted a representation on 24/7/2018 and thereafter filed WP(C) No.27190 of 2018 before this Court. The above writ petition was filed before the 2nd phase of allotment started. In the 2nd phase of allotment on 16/8/2018 also the petitioner was denied MBBS seat but allotted BDS seat in Government Dental College, Thrissur. WP(C) No.27190 of 2018 was disposed by this Court as per Ext P1 judgment recording the submission of the Government Pleader that the prospectus provides for 8% reservation on a State wide basis and the reservation is being strictly adhered to on the State wide basis. The Government Pleader also submitted that on the strength of the petitioner's rank, the petitioner will be allotted a seat if her rank falls within the 8% reserved seats. After recording the above submission, this Court directed the Government to take up and consider Ext P4 representation produced in that writ petition. Based on the direction in Ext P1 judgment, the Government passed Ext P2 order on 17/11/2018. As per Ext P2, the request of the petitioner was rejected observing that the allotment of seat was strictly in accordance to clause 4.1.5 of the approved prospectus. Ext P3 is the order passed by the Kerala State Commission for Scheduled Caste and Scheduled Tribe. According to the petitioner, communal reservation to Scheduled Castes and Scheduled Tribes (for short SCST) and Other Backward Classes (OBC) are vertical reservation under Article 15(4) of the constitution of India, while the reservation in favour of Government of India Nominees (for short Nominees), Persons With Disability (for short PWD) and Special Reservations (for short SR) are Horizontal Reservations under Article 15(1). Horizontal Reservations cut across the Vertical Reservations and the same is called Interlocking reservations. The counsel submitted that in the light of the judgment of the apex court in Indra Sawhny and others v. Union of India and others (1992) Supp (3) SCC 217), Anil Kumar Gupta and Ors v. State of UP and Ors (1995)5 SCC 173) and Saurav Yadav & Ors v. State of Uttar Pradesh & Ors decided on 18/12/2020 (), even after providing the Horizontal Reservations the percentage of backward class of citizens remain and should remain the same is the settled law. According to the petitioner, the proper and correct course is to first fill up the State merit of 60% on the basis of merit, secondly to fill up each of the social reservation quota i.e, OBC 13% and SCST 10%. Thereafter it is to be find out how many candidates belonging to PWD and SR categories have been selected on the above basis. According to the petitioner, If the quota fixed for PWD and SR categories is already satisfied in the case and if it is an overall Horizontal Reservations, no further question arises. It is further submitted that if it is not so satisfied, the requisite number of these reservation candidates shall have to be taken and adjusted and accommodated against open category, OBC, SCST as the case may be by deleting the corresponding number of candidates therefrom. The petitioner submitted that the reservation of 10% to SCST should remain at 10% even after providing these Horizontal Reservations. It is the case of the petitioner that as per clause 6.1.(i),(ii)(d) of prospectus, Nominees will be considered against State Merit seats and they will not be eligible for Communal/SR/PWD reservation or any fee concession. It is also submitted by the petitioner that mandatory reservation in the sanctioned in take of seats in Government Medical Colleges (other than Government Medical College, Palakkad) is as per G.O.Ms.131/71/Edn. Dtd 6/8/1971. As far as the Government Medical College, Palakkad is concerned, the Government Order is GO(Kai.)No.45/2014/SCSDD dtd. 19/7/2014. According to the petitioner, the number of seats available in colleges should be taken as four separate units for the purpose of computing mandatory reservation. It is the case of the petitioner that the total number of seats allotted to SCST in these colleges shall not be taken as together as a single unit so as to satisfy the 10% reservation for SCST on a State wide basis. According to the petitioner, the State authorities violated the Horizontal Reservation principles laid down by the apex court and consequently the number of reservation seats of SCST was drastically reduced. Hence the petitioner filed WP(C) No.16171 of 2019 on 12/6/2019. Subsequently that writ petition was withdrawn with liberty to file a fresh writ petition. Ext P4 is the judgment. According to the petitioner, the mandatory reservation for SCST is as per Ext P5 & P6 Government Orders. It is submitted by the petitioner that reservation to Nominees, PWD and SR categories referred to in clause 4.1.(ii), 4.1.(iii) and 4.1.(iv) of prospectus are Horizontal Reservations which should be applied as per the Horizontal Reservation principle laid down by the apex court. The petitioner submitted that as per Ext P7 Government Order, 70 seats are reserved for Scheduled Caste at Government Medical College, Palakkad since the college was set up with the funds allotted to the Scheduled Castes Development Department. It is also the case of the petitioner that the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions)Act, 2017 (for short the Act, 2017) provides for reservation of seats to students belonging to SCST and OBC in Private Medical Education Institutions other than those referred to in clause 1 of the Article 30 of the Constitution. Ext P8 is the gazette notification by which Act 2017 was promulgated. It is the case of the petitioner that as per clause 4.1.1 of Prospectus KEAM, 2018 provides for reservation of 15% of total sanctioned seats for All India Quota (for short AIQ) clause 4.1.2 reservation for Nominees, clause 4.1.3 reservation for 3% seats for PWD and clause 4.1.4 for SR category. It is the case of the petitioner that the above clauses do not postulate that AIQ, PWD and SR seats are set apart for the categories other than SCST. According to the petitioner, as per Clause 4.1.5, leaving the seats apart for AIQ, Nominees, PWD and SR the remaining seats will be distributed as per mandatory reservation principles as contemplated in the relevant Government Orders. Ext P9 is the relevant extract of the prospectus. According to the petitioners, Exts P5, P6, P7 & P8 are outside the terms of reference of Ext P9. The counsel also relied Ext P10 judgment in which it is stated that the reservation of 10% for SCST to be strictly complied with in respect of the entire seats available taken as a whole without excluding the other reservation categories. The petitioner also submitted that in Ext P13 judgment, this Court held that the quantum of seats on which the percentage of reservation has to be applied is on the total number of seats available in the course without excluding the 13 seats reserved for cadets of Indian Navy in that case. According to the petitioner, the reservation of 10% seats for SCST are in addition to the reservation of seats in Government Medical College, Palakkad and in Private Self financing Medical Colleges referred to in clause (1) of Article 30. The petitioner submitted that as per Ext P14 list of allotted candidates in KEAM 2018, the seats available with the 3rd respondent was 989 in Government Medical Colleges other than Government Medical Colleges, Palakkad. According to the petitioner, in the light of Ext P4 read with the apex court decisions, SCST are entitled 10% of 989 seats. It is the case of the petitioner that without excluding Nominees, the total seats available will be 1060 (989+27 Nominee seats) and the SCST entitled 10%, i.e, 102 seats. But as per Ext P14 only 94 seats are allotted including PWD and SR and thereby leaving a short fall of 5 to 8 MBBS seats to SCST.

(3.) It is the case of the petitioner that the number of seats available for allotment in Private Self Financing Colleges, just other than those referred to in Clause (1) of Article 30 of the Constitution for the year 2018-19 was 600. Sec. 10 of the Act 2017 provides mandatory reservation to SCST and OBC categories. It is the case of the petitioner that SCST categories are allotted only 51(SC 41 + ST 10) seats instead of 60 thereby leaving a shortfall of 9 more MBBS seats. The petitioner submitted that the computation of mandatory reservation seats in these colleges was in violation of the provisions of the Act.