A A JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner in O. P. 3324 of 1980 Sri A. A. Joseph as well as the petitioner in O. P. 3603 of 1980 Kumari A. S. Achamma were candidates who sought admission to the First Year M. B. B. S. Course in the medical Colleges of the State in the year 1980-81. Both of them belong to the Latin catholic community which is considered as a backward class for the purpose of admission to educational institutions. Both of them have not been included in the list of candidates selected for admission in the quota for Latin Catholics. THE petitioner in O. P. 3324 of 1980 claims that he is the 4th in rank in the list of Latin Catholic eligibles judged on the basis of marks and as the 4th in rank he is entitled to obtain admission. He further claims that the person noticed as second in rank Miss Sheela J is not a Latin Catholic and her income is above Rs. 10,000/,

(2.) IN the prospectus for the year 1980 81 mention is made of the availability of 558 seats in the Medical Colleges in the State. Of these seats, the seats available in the Calicut Medical College are to be filled up by students passing out of the Calicut University while the seats available in the 3 other Medical Colleges in the State are to be filled up by candidates passing out from the Kerala University. A proportion of 3:2 is to be maintained between the Science degree-holders and those who have passed the pre-degree examination or equivalent. 2 percent of the total seats available in the State is to be reserved for the Latin Catholic Community in accordance with G. O. (P) 208/66/edn. dated 2 21966. IN the matter of admission to the Medical Colleges of the State during the year 1979-80 there were disputes as to how the seats were to be divided between those who had passed out of the Kerala University and those who had passed out of the Calicut University. The matter ultimately reached the Supreme Court IN the decision reported in State of Kerala v. T. P. Roshana (AIR. 1979 SC 765) the Supreme Court indicated a formula to be adopted for the purpose of admission to the seats available in the State. It is pursuant to such direction that in the prospectus for the year 1980-81 allotments have been made and reservation has been provided for. IN the said decision the Supreme court observed that the allotment as between those who had passed out of the Calicut and the Kerala Universities and as between degree-holders in Science and Pre degree pass candidates will be "subject to the die-hard rule of communal reservation". According to the petitioner out of the 219 seats set apart for those who have passed Pre-degree examination 4 seats must necessarily be set apart for those of the Latin Catholic Community Actually it was so provided, 3 in the 3 Medical Colleges in the Travancore-Cochin area and one seat in the Calicut Medical College. The petitioner in O. P. 3324 of 1980 was an applicant as one who had passed Pre-degree from the Kerala University. 3 seats in the Medical Colleges in the erstwhile T C area of the State were filled up by 3 Latin Catholic candidates. But to the one seat in the Calicut Medical College there was no Latin Catholic applicant with a pass in the Pre-degree examination from the Calicut University. The result was that while those who had ranks I, 2 and 3 were selected for admission in the 3 Medical Colleges in the T C area the 4th seat in the Calicut Medical College was not allotted to any Latin Catholic candidate. It may also be mentioned here that only Latin Catholics falling within a specified income group could seek admission on the basis of the rule of reservation. To seek admission to the reservation seats an income limit of rs. 10,000/- is fixed. The following is the list of persons who were ranked as 1 to 6 on the basis of the marks obtained by them in the Pre-degree examination: Table:#1 There is no dispute about the admission given to the first in rank Miss Mercy Sebastian. The petitioner in O. P. 3324 of 1980c is mr. A. A. Joseph He challenges the ranking of Miss Sheela J. who is the 5th respondent in his petition and the 3rd respondent in the other petition. This is on the ground that Miss Sheela is not a Latin Catholic. Though her mother is said to be a Latin Catholic she is said to have married one Gopinathan Nair consequent upon which, according to the petitioner. Miss Sheela, born in that marriage, would not be a Latin Catholic. It is further said that the income of the father of Sheela who was understood to be in the Persian Gulf area for some years was considerable and that added to the income of the mother which was also said to be in excess of Rs. 10,000/- would certainly disentitle Miss sheela from seeking admission in the reservation quota for Latin Catholics The petitioner therefore sought to displace the 5th respondent in which event he would be the 3rd in rank and would be found entitled to admission in one of the 3 seats available for Latin Catholics who had passed from Kerala University. IN the alternative there is another contention. It is that when Latin Catholics are entitled to 4 seats in the State and the said 4 seats represent their eligibility for reservation on the basis of the total number of seats in the state, in order to maintain the die-hard rule of communal reservation it was necessary to allot the one seat in the Calicut Medical College to a Latin catholic who had passed out of the Kerala University when it was seen that none eligible who had passed out of the Calicut University was available. IN otherwords emphasis has to be given not to the University from which a candidate has passed as much as the adequacy of representation for Latin catholics taking the State as one unit. If that be the case, the petitioner claims, even if he was 4th in rank he should be admitted to the one seat in the calicut Medical College set apart for a Latin Catholic.

(3.) ONE of the main questions in this case concerns the number of seats available for Latin Catholics. 4 seats have been found to be their legitimate due based on the principle of 2 percent reservation out of the total seats. As a matter of fact we find that ii all the total seats are taken into account, 2% will work out to 11 seats. Actually only 6 seats have been reserved for degree-holders and 4 seats for pre-degree candidates. This is evidently because the proportion has been worked out on number of seats as separately allotted to degree-holders and pre-degree candidates. As observed by the Supreme Court in Para. 30 of the decision in State of Kerala v. T. P. Roshana (AIR 1979 SC. 765) the rule of communal reservation is to be an overriding factor. This is to ensure that the representation envisaged for backward classes are guaranteed to them despite the various divisions on the basis of the Universities from which qualifying examinations are passed and the qualifying examinations themselves. Therefore such representation must necessarily be on the sum total of the seats. In other words if 218 seats are set apart for those who have passed pre-degree examination 4 seats out of this must be available to the Latin Catholic candidates No doubt regional considerations are of importance and as far as possible it can only be subject to such regional considerations that the reserved seats can be filled up. But where, on account of the non-availability of a candidate in a region of the class which is entitled to reservation the seat is vacant that should not result in that class losing its right to that seat In such circumstances if there are other applicants eligible to fill up the seat though not in the same region the most eligible among them should necessarily be found to be entitled to admission in such a seat. That alone would ensure to the community proper representation. This view may perhaps be the reason why the selection committee prudently chose not to fill up the one seat in the Calicut Medical College. Allotment of that seat also to a Latin Catholic candidate appears to be in consonance with the spirit of the direction contained in the judgment of the supreme Court. The representation to backward classes is intended to achieve a purpose and that purpose would be defeated if such representation is denied on a purely technical ground such as that in a seat set apart in the Calicut medical College there is no one who has passed out from the Calicut University available for admission. In these circumstances we find that one more seat is available to Latin Catholics for admission to the Medical Colleges for the first year M. B. B. S. course and that is the seat in the Medical College, Calicut which is lying vacant. That seat will goto the 4th candidate and the petitioner in O. P. 3324 of 1980 Sri. A. A. Joseph being the 4th in rank he would naturally get that seat.