Kerala High Court
State Of Kerala vs Rahul S Krishnan on 2 August, 2021
W.A.No. 773 & 803 of 2021 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
WA NO. 773 OF 2021
JUDGMENT DATED 04.03.2021 IN WP(C) 1176/2021 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 3 IN W.P.(C):
1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY,
SC/ST DEVELOPMENT DEPARTMENT,GOVERNMENT SECRETARIAT,
TRIVANDRUM-695 001.
2 DIRECTOR OF SC/ST DEPARTMENT DEVELOPMENT,
NANDAVANAM,TRIVANDRUM-695 033.
3 DISTRICT WELFARE OFFICER, DISTRICT OFFICE, SC/ST
DEVELOPMENT DEPARTMENT, CIVIL STATION,
PALAKKAD-678 001.
BY ADV. SRI. TEK CHAND, SR. GOVERNMENT PLEADER
RESPONDENTS/PETITIONERS & 4TH RESPONDENT IN W.P.(C):
1 RAHUL S KRISHNAN, AGED 23 YEARS
S/O.SURESH KUMAR,MADHAVAM,GDRA-19,
GREEDALE VILLAS,MUDAVAN MUGHAL,POOJAPPURA.P.O,
TRIVANDRUM-695 012.
2 APARNA JAYAN,
AGED 23 YEARS
D/O.V.JAYAKUMAR,KARTHIKA,THIRUMALA,
TRIVANDRUM-695 006.
3 PRINCIPAL,
KARUNA MEDICAL COLLEGE,VILAYODI,CHITTOOR,PALAKKAD-678 103.
R1 & R2 BY SRI. V.T. RAGHUNATH
R3 BY SRI. GEORGE POONTHOTTAM (SR)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021, ALONG
WITH W.A. NO. 803/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No. 773 & 803 of 2021 :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
WA NO. 803 OF 2021
JUDGMENT DATED 04.03.2021 IN WP(C) 12990/2020 OF HIGH COURT OF KERALA,
ERNAKULAM
APPELLANTS/RESPONDENTS 1 TO 6 IN W.P.(C):
1 STATE OF KERALA,
REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, SC/ST
DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 SECRETARY TO GOVERNMENT
HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
3 SECRETARY TO GOVERNMENT
HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
4 SECRETARY TO GOVERNMENT
DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
5 THE DIRECTOR,
SCHEDULED CASTES DEVELOPMENT DEPARTMENT, VIKAS BHAVAN,
VIKAS BHAVAN, P.O., THIRUVANANTHAPURAM 695 033.
6 THE DISTRICT SCHEDULED CASTES OTHER ELIGIBILITY COMMUNITY
DEVELOPMENT OFFICER,
CIVIL STATION, PALAKKAD DISTRICT 678 001.
BY ADV. SRI. ROBIN RAJ M.K. SPL. GOVERNMENT PLEADER
RESPONDENTS/PETITIONERS & 7TH RESPONDENT IN W.P.(C):
W.A.No. 773 & 803 of 2021 :3:
1 VIVEK SURENDRAN
S/O.SURENDRAN, SOUPARNIKA, PERISSERI P.O., CHENGANNUR,
ALAPPUZHA DISTRICT 689 126
2 SURABHI S.
D/O.SATHEESH KUMAR, SURABHI BHAVAN, PARAMUKAL,
KARAKONAM, POOVACHAL P.O.,
THIRUVANANTHAPURAM DISTRICT 695 572.
3 VIVEK K. ABHILASH
S/O.S.ABHILSH, PRADEEP NIVAS, KUNNINPURAM, CHAIKOTTUKONAM,
MARUTHATHOOR, NEYYATTINKARA,
THIRUVANANTHAPURAM DISTRICT 695 122
4 THE PRINCIPAL
KARUNA MEDICAL COLLEGE, VILAYODI, CHITTUR, PALAKKAD
DISTRICT 678 103.
R1 TO R3 BY SRI. ARUN MATHEW VADAKKAN
R4 BY SRI. GEORGE POONTHOTTAM (SR.)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021,
ALONG WITH W.A.NO. 773/2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No. 773 & 803 of 2021 :4:
Dated this the 2nd day of August, 2021.
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ appeals are filed by the State and its officials
challenging the common judgment dated 04.03.2021 of the learned
single Judge in W.P.(C) Nos. 12990 of 2020 1176 of 2021, whereby the
learned single Judge allowed the writ petitions and directed the
appellants to take immediate steps for sanction and disbursement of
e-grant benefits due to the writ petitioners who are belonging to the
scheduled community undergoing MBBS course.
2. The case projected by the appellants was that the students
have secured admissions in a private self financing college namely
Karuna Medical College, Palakkad without securing allotment from the
list prepared on the basis of the National Eligibility Cum Entrance Test
(NEET), and consequently by the Controller of Entrance Examinations,
making them ineligible. It is, thus, challenging the legality and
correctness of the judgment, the appeals are preferred.
3. Brief material facts for the disposal of the writ appeals are as
follows:
The petitioners, students of Karuna Medical College, Palakkad
and members belonging to schedule caste, who are undergoing MBBS
course have filed the writ petitions seeking a direction to the
appellants to take urgent steps for sanction and remittance of the
entire e-grant benefits due to them, with the college authorities
immediately and to restrain the Medical College from making demands
of fee from the writ petitioners. In fact, 100 students were admitted
to Karuna Medical College for MBBS course during the academic year
2016-2017. The admissions made by the college were cancelled by
the Admission Supervisory Committee appointed by the State
Government on 02.10.2016, which order was upheld by this Court.
Thereupon, fresh allotments to all the 100 seats were made on
07.10.2016, pursuant to the directions issued by this Court. It was
the case of the petitioners that 70 students who were already admitted
in the College by the Management were found eligible for readmission
and 30 students were found ineligible, and fresh appointment was
given to 30 candidates against those seats.
4. According to the writ petitioners, they are students admitted
to the course pursuant to the allotment made on 07.10.2016 and they
were admitted under the SC/ST category. But, the e-grant benefits
were denied to the writ petitioners by the Director of the Scheduled
Castes Development i.e., the 5th appellant in W.A.No. 803 of 2021. It
was, thus, aggrieved by the action of the 5 th respondent, the writ
petitions were preferred.
5. The case projected by the writ petitioners was that after
28.09.2016 i.e., the date on which the Hon'ble Apex Court passed
orders in Civil Appeal No. 9862 of 2016, there cannot be any
admission to private medical colleges in the management quota. The
writ petitioners were admitted on 07.10.2016 and therefore, the
admissions secured by them cannot be treated as under management
quota. The sum and substance of the contention advanced was that
as the writ petitioners were admitted under the management quota,
there cannot be a further classification among the Scheduled Caste
students for the purpose of e-grant benefits.
6. On the basis of the counter affidavit filed by the Government,
it was argued that the rank of the last candidate who was admitted to
the course through the centralised allotment process was 11490 and
the writ petitioners were far below in the rank list. It was also
submitted that the first petitioner in W.P.(C) No. 12990 of 2020 was
serial No. 91235 in the rank list and there were about 80,000 students
above the writ petitioners who aspired for admission. It was further
pointed out that the writ petitioners were admitted in the Karuna
Medical College under management quota. Though this Court has set
aside the initial admission made by the management and made fresh
admission to the courses, the admission granted to the writ petitioners
were, in fact, under management quota only and not on merits.
7. In order to substantiate the contention, reliance was placed
on Ext. R1(b) communication issued by the Admission and Fee
Regulatory Committee, in which the Chairman of the Committee
observed that the admission of the students in Karuna Medical College
during 2016-2017 was made by the Management themselves. It was
further submitted that when the other medical colleges in Kerala were
part of the common admission process, Karuna Medical College alone
stood outside the common admission process and made admissions of
their own. Therefore, according to the Government, it would not be
proper to pay e-grant benefits to the students who were admitted
under the management quota. Apart from the same, it was also
pointed out that the admissions were made in the year 2016-2017 and
therefore, there is considerable delay in filing the writ petitions in the
years 2020 and 2021.
8. The paramount contention advanced by the Government was
relying upon Ext. R1(a), G.O(Rt.) No. 2314/2016/H&FWD dated
20.08.2016, whereby the Commissioner for Entrance Examinations,
Kerala, was directed to make arrangements for counselling in the
Private/Management/NRI quota seats in all the Private/Self Financing
Medical/Dental Colleges or any Private/Deemed University from the
NEET List following the reservations and quotas agreed to with the
Colleges during the previous year. It was also made clear therein that
admission to 50% of merit seats will be done based on inter se
rankings as per Kerala Engineering Agricultural Medical Entrance
Examinations (KEAM).
9. The Government has also relied upon Ext. R1(b)
communication dated 01.06.2019 from the Chairman of the Admission
and Fee Regulatory Committee addressed to the Department of
Scheduled Caste Development, Thiruvananthapuram conveying that
admission process for the academic year 2016-2017 to Karuna Medical
College was conducted directly by the College management. So also,
the Government has heavily relied upon Ext.R1(d) Government Order
dated 02.07.2009 produced in the writ petition, whereby
comprehensive guidelines were issued for the grant of educational
allowance to SC/ST/OEC students. Relying upon the said orders, it
was contended that the educational concession, including fee for the
professional course in private self financing institutions, would be as
decided by the Government/ Government agency/ University in regard
to SC/ST/OEC students who are admitted in the professional courses in
Government recognised self financing institutions from the rank list
prepared by the Commissioner for Entrance Examinations and through
the allotment memo issued by the Commissioner and from the rank
list of Directorate of Medical Education, Directorate of Health Services
and Government recognised agencies like Nursing Council.
10. We have heard the learned Special Government Pleader for
SC/ST Department Sri. M.K. Robin Raj, learned Senior Government
Pleader Sri. Tek Chand, learned Senior Counsel appearing for the
Medical College Sri. George Poonthottam and Sri. Arun Mathew
Vadakkan for the writ petitioners/respondents 1 to 3, and perused the
pleadings and materials on record.
11. The issue that arose for consideration before the learned
single Judge was whether the students who were admitted under
management quota in the self financing medical college are entitled to
get e-grant benefits. The learned single Judge, in fact, considered the
issue taking into account Ext. P5 letter produced by the writ petitioners
dated 06.05.2017 issued by the District Scheduled Caste Development
Officer, Palakkad, whereby it was pointed out that the SC/ST students
who were admitted in the Karuna Medical College pursuant to the
orders of this Court and approved by the Commissioner for Entrance
Examinations are entitled to get educational concessions.
12. It was also found by the learned single Judge that it was
pursuant to the admission process carried out at the instance of the
Admission Supervisory Committee that the writ petitioners were
included in the allotment list and therefore, it cannot be legally
presumed that the writ petitioners were admitted by the college
authorities under management quota. In fact, this question was
considered by this Court in W.A. No. 2513 of 2015 and held that the
SC/ST students admitted to the management course directly by the
management are eligible and entitled to secure e-grant and other
educational benefits.
13. It was also held thereunder that merely because the
students belonging to the SC/ST category secured admissions in
management quotas, that would not take away the rights and benefits
granted to them by virtue of the Government orders and on the basis
of the benefits extended to the members of the SC/ST community
under the Constitution of India. Learned Special Government Pleader
also pointed out that, in a similar matter pending before the Apex
Court from another State, operation of the judgment is stayed.
14. The issue with respect to the classification made by and
between the students belonging to the SC/ST communities undergoing
studies in the educational institutions run by Government and private
management as per Government orders was also taken into account
and held that such classification is illegal and arbitrary, also placing
reliance upon the judgment of the Apex Court in Budhan Choudhary
v. State of Bihar [AIR 1955 SC 191], Probhudas Morarjee Rajkotia
v. Union of India [AIR 1966 SC 1044], Harakchand Ratanchand
Banthia v. Union of India [(1969) 2 SCC 166 : AIR 1970 SC 1453],
Western M.P. Electric Power & Supply Co. Ltd. v. State of U.P.
[AIR 1970 SC 21], Mohd. Shujat Ali v. Union of India [(1975) 3 SCC
76], D.S. Nakara v. Union of India [(1983) 1 SCC 305], R.K. Garg
and Ors. v. Union of India (UOI) and Ors. [(1981) 4 SCC 675], Sri
Srinivasa Theatre and others v. Government of Tamil Nadu and
others [(1992) 2 SCC 643], Venkateshwara Theatre v. State of
Andhra Pradesh and Others [(1993) 3 SCC 677], L.I.C. of India
and Another v. Consumer Education & Research Centre and
Others, K. Thimmappa v. Chairman, Central Board of Directors,
SBI [(2001) 2 SCC 259], Amita v. Union of India [(2005) 13 SCC
721], Confederation of Ex-Servicemen Association v. Union of
India [AIR 2006 SC 2945] and Union of India (UOI) and Ors. v. N.S.
Rathnam and Sons [(2015) 10 SCC 681.
15. After having analysed the legal position from the judgments
referred to above, and the relevant provisions of the Constitution of
India and other laws, it was held as follows in the judgment in W A
2513 of 2015:
"25. The object sought to be achieved in providing financial
concession to the SC/ST students is for educational purposes.
Analysing the decisions of the Hon'ble Supreme Court, we are of the
view that merely because, some of the students belonging to SC/ST,
secure admission to the courses, without undergoing the examination,
it cannot be said that there is a fundamental distinction, with regard to
the community at large. All the students belonging to SC/ST
community, homogeneously suffer from social disability and thus the
financial assistance. It is not the case of the Government that the
students, who secure admission in the institutions run by the
respondent, do not suffer from social disability.
26. Classification, which the Government have adopted, is not in
accordance with the directive principles of State Policy and it is
manifestly unreasonable. Such a classification is violative of Article
14 of the Constitution of India.
27. Distinction placed by the Government is nothing, but an
artificial and impermissible classification, among the students
belonging to SC/ST community. The classification is not founded on
intelligible differentia.
28. Classification made by the Government is not germane to the
object sought to be achieved, i.e., providing financial assistance to the
SC/ST students, and that, the same has no nexus to the object sought
to be achieved.
29. It should be the committed liability of the State, to extend
refund of fee to the SC/ST students, notwithstanding the method of
selection, and such students, who could not secure admission through
the entrance examination, conducted by the State, cannot be denied of
their right to pursue education, in the Self Financing Institutions. Their
educational dreams cannot be shattered and nipped at the bud.
Government should consider that they would be constrained to pay
tuition fees, in some cases, even more than the fee fixed by the
Government.
30. On an analysis of the said imperative conditions, contained
under Articles 338 of the Constitution of India, it is clear that the
Government is not at liberty to classify the benefits available to the
members of the Scheduled Caste community, for the mere reason that
they have secured admission directly in the institutions managed by the
Self Financing Institutions.
31. What is intended under the provisions of the Constitution is, to
provide necessary help and assistance to the members of the Scheduled
Caste community, as a class by itself, and therefore, the Central and
State Governments are bound to protect the welfare and development
of the members of the Scheduled Caste community, without making
any discrimination between them especially, in the matter of providing
fee concession to the students, pursuing education in various
educational institutions, irrespective of the fact as to whether, it is a
Government controlled institution.
32. On the other hand, it is explicit and unequivocal that, it is
always the intention of the framers of the Constitution, that the
Governments, without fail, shall ensure their welfare, progress, and
development to satisfy the Constitutional requirements.
33. Thus, bearing in mind the aspects mandated under the
Constitution of India, the learned Single Judge has interpreted the
orders of the State Government and directed reimbursement of fees to
the students, who have pursued their studies in the writ petitioner
institution.
34. We are also of the firm opinion that the distinction made by
the State Government, between the students securing admission
through the entrance examination, in the institutions controlled and
regulated by the State Government, and the students belonging to the
Scheduled Caste community, who have secured admission directly, in
any institution conducted by any management, is a clear
discrimination and violative of Article 14 of the Constitution of India,
which clearly manifests, not to deny to any person, equality before
law or equal protection of the laws, within the territory of India.
35. Added to above, are the duties and obligations of the State, as
per the Directive Principles of State Policy, contained under Part IV
of the Constitution of India. Article 39 of the Constitution mandates
a duty on the State, to secure a social order, for the promotion of
welfare of the people, by securing and protecting as effectively as it
may a social order in which, social, economic, and political, shall
inform all institutions of the national life and further that, the State
shall eliminate inequalities in status, facilities and opportunities, not
only among individuals, but also among groups of people engaged in
different vocations. So also, Article 46 of the Constitution of India,
which casts a duty on the State for promotion, with special care of the
educational and economic interests of weaker sections of the people,
and in particular, the Scheduled Castes and the Schedule Tribes, and
shall protect them from social injustice and all forms of exploitation.
36. On the reference to the interim orders of the Hon'ble Supreme
Court in S.L.P(C) Nos.8073 to 8080 of 2013, in Shree Chamundi
Mopeds Ltd. v. Church of South India Trust Association CSI
Cinod Secretariat, Madras (AIR 1992 SC 1439), the Hon'ble Apex
Court explained thus:
".......While considering the effect of an interim order
staying the operation of the order under challenge, a
distinction has to be made between quashing of an
order and stay of operation of an order. Quashing of
an order results in the restoration of the position as it
stood on the date of the passing of the order which
has been quashed. The stay of operation of an order
does not, however, lead to such a result. It only means
that the order which has been stayed would not be
operative from the date of the passing of the stay
order and it does not mean that the said order has
been wiped out from existence. This means that if an
order passed by the Appellate Authority is quashed
and the matter is remanded, the result would be that
the appeal which had been disposed of by the said
order of the Appellate Authority would be restored and
it can be said to be pending before the Appellate
Authority after the quashing of the order of the
Appellate Authority. The same cannot be said with
regard to an order staying the operation of the order of
the Appellate Authority because in spite of the said
order, the order of the Appellate Authority continues to
exist in law and so long as it exists, it cannot be said
that the appeal which has been disposed of by the
said order has not been disposed of and is still
pending..........."
16. On an analysis of the situations available in the instant
appeals, it is clear that they are similar to the judgment rendered by
this Court in W.A. No. 2513 of 2015 dated 25.06.2021 as above and
therefore much deliberations in regard to the facts and circumstances
are not required. In that view of the matter, we are of the clear and
considered opinion that the Government is not entitled to succeed in
the appeals. We also do not find any jurisdictional error or other legal
infirmities in the common judgment of the learned single Judge, liable
to be interfered with exercising the power conferred on this Court
under Section 5 of the Kerala High Court Act, 1958. Apart from the
above, we are informed that the State Government has issued orders
providing e-grant benefits to similarly situated students, who have
secured admission under the management quota from the succeeding
year.
Needless to say, writ appeals fail and accordingly they are
dismissed.
sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX OF WA 773/2021
APPELLANTS' ANNEXURES:
Annexure A1 COPY OF COUNTER AFFIDAVIT WITH EXHIBITS FILED BY
THE 1ST RESPONDENT IN CONNECTED
W.P(C)NO.12990/2020 WHICH WAS ADOPTED IN
W.P(C)NO.1176/2021 FOR DECIDING BOTH THE CASES
JOINTLY.
RESPONDENTS' ANNEXURES: NIL
/True Copy/
P. S to Judge.
rv
