R S BOSS Vs. K P KRISHNAN NAIR

JUDGEMENT

(1.) This original petition as amended is for the issue of a writ of certiorari to quash Explanation.3 to the Government Order produced as Ext. R4(a) along with the counter affidavit filed by the 4th respondent and for consequential reliefs. The petitioner was a candidate for the B H.M.S. Course in the Athurasramam N. S. S. Homeo Medical College, Sachivothamapuram, Kottayam for the academic year 1982-83. Ext P3 dated 18-3-1983 is a true copy of the list of candidates selected for admission for the B. H. M. S, Degree Course in the said college. Ext. P3 shows that the petitioner is number 5 in the waiting list and had obtained in the qualifying examination in they optional subjects a total of 290 marks. The 5th respondent, who is one among the selected candidates in the quota available for "other backward communities" in the absence of sufficient number of scheduled castes/tribes candidates, is No. 4 in the reservation quota. He had obtained only 262 marks in the optional subjects. The petitioner belongs to the Ezhava community included in the socially and educationally backward classes of citizens within the meaning of Art.15(4) of the Constitution. The 5th respondent also belongs to a community classified as falling in the socially and educationally backward classes. The petitioner's grievance is that even though both himself and the 5th respondent are members of communities classified as socially and educationally backward, he has not been selected even though he had much higher marks in the qualifying examination than the 5th respondent. Respondents 1 to 4 are members of the selection committee of whom the 4th respondent is the Principal of the College concerned, A counter affidavit has been filed on behalf of respondents 3 and 4. There is also a counter affidavit filed by the 1st respondent on behalf also of the 2nd respondent. The stand taken in the counter affidavits is that selection was made in accordance with the Government Orders Exts. R4(a) and R4(b) produced along with the counter affidavit of respondents 3 and 4. Ext.R4(a) prescribes the mode of selection and the percentage of seats to be reserved for Scheduled Castes/Tribes and backward communities in the three private Homeo Colleges in the State, mentioned therein. 20 per cent of the total number of seats in each college shall be reserved for candidates belonging to the Scheduled Castes/Tribes and in the absence of sufficient number of candidates from these communities, the remaining seats available in the quota reserved for them shall be filled on the basis of merit from among backward minority communities in case the college is run by a backward minority community and from among other backward communities in all other cases The Government Order contains three explanations. As per Explanation I backward minority community means the communities mentioned in categories II, III and IV of the Annexure to G. O. (P) 208/66/Edn; dated 2-5-1966. The Annexure to the aforesaid G. O.(P) is produced along with the counter affidavit of respondents 3 and 4 as Ext. R4(b). According to Explanation.2 to Ext. R4(a) backward community means all communities included in Ext. R4(b) and as per Explanation.3 Other Backward Community means the communities included in categories IV and V of Ext. R4(b).

(2.) The total number of seats available for admission to the course in the Athurasramam N. S. S. Homeo Medical College is only 50, out of which as per Ext. R4(a) 10 seats ate reserved for Scheduled Castes/Tribes candidates. During the relevant year 1982-83 there were only six Scheduled Castes candidates and the remaining four seats were available to the Other Backward Communities in the order of merit. There is no dispute that the Athurasramam N. S. S. Homeo Medical College is not one run by a backward minority community. But for Explanation.3 in Ext. R4(a), the petitioner would have been selected for admission to the course instead of the 5th respondent. It is not disputed that numbers 1 to 4 shown above the petitioner in the waiting list do not belong to any backward community, and if there is no restriction as contained in Explanation.3 to Ext. R4(a), the petitioner would have been entitled to selection to the last place available in the reserved quota on account of the non availability of sufficient number of Scheduled Castes/Tribes candidates.

(3.) Ext. R4(b) shows the list of communities declared by the Government as falling under the "socially and educationally backward classes of citizens" within the meaning of Art.15(4) of the Constitution. Category 1 in Ext. R4(b) is Ezhava including Ezhavas, Thiyyas, Ishuvan, Izhuvan, Illuvan and Billava. The petitioner comes under category I mentioned in Ext. R4(b). As per Explanation II to Ext. R4(b) all the communities mentioned in Ext. R4(b) belong to the socially and educationally backward classes. Explanation.3 restricts Other Backward Communities to categories IV and V of Ext. R4(b). Categories I to III of Ext. R4(b) are totally excluded from the benefit of reservation on account of Explanation.3. The 5th respondent being a Chakkala belongs to Category V of Ext. R4(b). He is selected to the reserved quota for backward communities for the reason of Explanation.3 restricting the reservation for other backward communities, to categories IV and V of Ext. R4(b).