SHAJI KUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) Heard learned counsel for the appellant and the learned Government Pleader. The writ petitioner is the appellant. He aspires for admission to Post Graduate Degree course in Homoeopathy for the year 2014-15. Ext. P2 is the prospectus. It prescribes that candidates otherwise eligible for admission should not be more than 45 years of age as on the first day of January, 2014. Relaxation up to a maximum of five years is granted in case of SC/ST candidates and to teachers of Homoeopathic Medical Colleges. The appellant is employed in the Government service and belongs to the category which has one seat reserved for doctors who have served in the rural areas. They are called the rural service candidates. Reservation is provided for as per clause 5.5 of the prospectus. The relaxation of age limit by five years as per clause 4.b is available only to teachers of Homoeopathic Medical Colleges apart from SC/ST candidates. The appellant, who is now aged more than 45 years, challenges the term of the prospectus fixing 45 years as on 1.1.2014 as the upper age limit. The learned single Judge dismissed that plea.

(2.) Learned counsel appearing for the appellant argued that the restriction of the age limit as 45 years is an infraction of fundamental rights. That apart, it is argued that the State could not have done it by an executive action since executive power is coexistence with legislative power and there is no legislation in this State akin to the Kerala Medical Officers' Admission To Post Graduate Courses Under Service Quota Act, 2008 which relates to Post Graduate Courses in allopathic system of medicines. It is also argued that there is no rationale in restricting the relaxation to teachers of Homoeopathic Medical Colleges while refusing such relaxation to rural service candidates. Reference was made to the Full Bench decision of this Court in Saurabh Jain v. State of Kerala, 2011 1 KerLT 888(F.B.)) to point out that merely because the candidate has applied in terms of the prospectus, there is no question of estoppel building up against him. Reference was made to Bishambhar Dayal Chandra Mohan v. State of U.P., 1982 1 SCC 39) to say that discrimination may work out on the basis of the fact situation in hand. The decision of this Court in K.A. Babu and Ors. v. State of Kerala & Ors.,1987 1 KerLT 730) and that of the Orissa High Court in Ashok Kumar Mishra v. State of Orissa and Ors., 2012 AIR(Ori) 153 were referred to point out that exclusion from stream of education by fixing a cut-off limit, as to age, is unconstitutional.

(3.) At the outset, we may say that the decision of this Court in relation to the legal education and that of the Orissa High Court in relation to education in pharmacy are all matters relating to admission at entry levels. Apart from that, they do not answer any issue touching any need based reservation which the executive Government may make while issuing the prospectus. Those decisions do not have any bearing to the case in hand.