RIYA R EBENEZER Vs. UNION OF INDIA

JUDGEMENT

(1.) Two students who have appeared for the National Eligibility cum Entrance Test (UG) for the year 2018 (hereinafter referred to as the 'NEET' for short) desirous of obtaining admission to the professional course of MBBS have filed this writ petition. According to them, they have secured the cut off percentile for eligibility to obtain admission. They belong to the State of Tamil Nadu and are members of the CSI (SIUC) community, which is a Christian denomination. They also claim that their community has been categorized as an Other Backward Community (OBC) and is recognized as such throughout the country. The fifth respondent is a Medical College established in the year 2002 by their community, the CSI (SIUC), a minority community. It is contended that, in Ext.P12 Government Order that related to the academic year 2017-2018, there were clauses under which seats were reserved for students belonging to their community. Particularly, reliance is placed on Clause 2(iii) where 20 seats were earmarked for Non-Keralites belonging to CSI, Diocese members, Associate members of CSI/CNI, Anglican Church of India. However, in Ext.P5 prospectus, apart from the fact that there is no similar clause included, persons like the petitioners have been totally excluded in view of the wordings of Clause 6.1 thereof. As per Ext.P8 order, the sixth respondent has approved the prospectus. It is contended that, the prospectus Ext.P5, Ext.P6 Government Order approving the prospectus, as well as the order of the sixth respondent Ext.P8, by which the prospectus is approved by the sixth respondent, are liable to be set aside as being violative of the rights of the petitioner under Art. 30 (1) of the Constitution.

(2.) According to the learned Senior Counsel Sri. S.Sreekumar who appears for the petitioner, though the sixth respondent has placed reliance on Ext.P10 judgment of the Apex Court to sustain the validity of Clause 6.1 of Ext.P5, the Court has not considered the challenge made against the said clause, on the merits. In fact, it is contended that, Ext.P10 has been passed and the claim negatived on the preliminary question of maintainability alone. For the above reason, it is contended that, the sixth respondent ought not to have approved the prospectus. Our attention is drawn to paragraph 102 of the decision in P.A. Inamdar Vs. State of Maharashtra, (2005) 6 SCC 537 to contend that, a "sprinkling" of candidates outside the State was permissible in institutions run by minority communities. According to the learned Senior Counsel, the dictum laid down by the Apex Court in T.M.A. Pai Foundation Vs. State of Karnataka, (2002) 8 SCC 481 read in conjunction with the decision in P.A. Inamdar Vs. State of Maharashtra confers a right on the minority community to grant admissions to even trans border candidates. The learned counsel therefore seeks interference with the impugned orders.

(3.) Per contra, the learned Government Pleader who appears for respondents 2 and 7 points out that, in Ext.P8 order of the sixth respondent, what was being considered was only admissions to the post graduate courses of MD/MS/Diploma Admission 2018-2019 as evident from the reference shown in the said order. The claim of the petitioners being for admission to undergraduate courses, it is contended that Ext.P8 has no application to such courses. It is further pointed out that the prospectus Ext.P5 is dated 30.1.2018, which was approved on the same date by the Government. Thereafter, on the basis of the prospectus, the admission process has commenced. A rank list on the basis of NEET was published on 21.6.2018. On the basis of the rank list, a first allotment was made on 4.7.2018. Since this writ petition has been filed only on 6.8.2018 on the eve of the second allotment that is in the process of being effected, it is contended that the challenge made by the petitioners is belated. In addition to the above preliminary objection, it is pointed out by the learned Government Pleader that as per Clause 6(i) of Ext.P5, the candidates have been divided into three categories designated as Keralites, Non-Keralite Category I and NonKeralite Category II. As per the definition contained in Ext.P5, there is no exclusion of Non-Keralites in toto. NonKeralites are also permitted to be granted admission, but subject to the restrictions contained in the said clause. The learned Government Pleader places reliance on the decision of the Apex Court in Dr. Pradeep Jain Vs. Union of India, (1984) 3 SCC 654 to point out that what has been prohibited therein is only reservation on Geographical basis that extends to 100%. Inasmuch as there is no 100% reservation for Keralites on geographical basis, the clause is perfectly valid. The learned Government Pleader also places reliance on the dictum in Sourav Choudhary Vs. Union of India, (2003) 11 SCC 146 particularly paragraph 29 to point out that the clause as worded in Ext.P5 is perfectly valid.