Kerala High Court
Volga K vs The State Of Kerala on 11 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
WP(C) NO. 12332 OF 2021
PETITIONERS:
1 VOLGA K
AGED 19 YEARS
D/O. SIVADASAN.K.K., KATTUNILATH HOUSE,
PONNURUNNI, VYTILA P.O. 682 019,
ERNAKULAM DISTRICT.
2 SARAH MARIA S.B.,
AGED 14 YEARS
D/O. SURESH BABU, THUNDITHARA ,
NEAR KARTHIKA HOSPITAL, AROOR P.O. 688 534,
ALAPPUZHA DISTRICT.
BY ADVS.
T.N.JAYADEVAN
D.JOTHIKUMAR
MINU SIBY ROY
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HIGHER EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE DIRECTOR 0F TECHNICAL EDUCATION.
PADMAVILASAM ROAD, FORT NALUMUKKU,
THIRUVANANTHAPURAM 695 023.
3 THE SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
W.P.(C) No.12332/2021
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4 THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION,
MEDICAL COLLEGE, P.O.,
THIRUVANANTHAPURAM 695 001.
5 THE COMMISSIONER FOR ENTRANCE EXAMINATION,
5TH FLOOR, HOUSING BOARD BUILDINGS,
SANTHI NAGAR, THIRUVANANTHAPURAM 695 001.
6 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
REPRESENTED BY REGISTRAR, CET CAMPUS,
ALTHARA ROAD, AMBADY NAGAR,
THIRUVANANTHAPURAM 695 016.
7 KERALA UNIVERSITY OF HEALTH SCIENCES,
REPRESENTED BY REGISTRAR, MULANKUNNATHUKAVU,
MEDICAL COLLEGE P.O. 680 596, THRISSUR.
8 KERALA AGRICULTURAL UNIVERSITY,
REPRESENTED BY REGISTRAR, MAIN CAMPUS,
VELLANIKKARA, THRISSUR 680 656.
9 KERALA VETERINARY AND ANIMAL SCIENCES
UNIVERSITY,
REPRESENTED BY REGISTRAR, POOKOT,
LAKKIDI P.O., WAYANAD 673 576.
10 KERALA UNIVERSITY OF FISHERIES AND OCEAN
STUDIES,
REPRESENTED BY REGISTRAR, PANANGAD ROAD,
MADAVAN JUNCTION, KOCHI 682 506.
11 THE STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
W.P.(C) No.12332/2021
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BY ADVS.
SHRI.N.MANOJ KUMAR, STATE ATTORNEY
SRI.P.G.PRAMOD, GOVERNMENT PLEADER
SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF
HEALTH SCIENCES
SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL
UNIVERSITY
SMT.AYSHA YOUSEFF, SC, KERALA VETERINARY AND
ANIMAL SCIENCES UNIVERSITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.01.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.12332/2021
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N. NAGARESH, J.
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W.P.(C) No.12332 of 2021
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Dated this the 11th day of January, 2022
JUDGMENT
~~~~~~~~~
The petitioners are eligible for KEAM-2021 and
NEET-UG 2021. The petitioners have registered for
KEAM-2021. The petitioners state that Clause 4.1.5 of
Ext.P1 KEAM Prospectus provides for reservation of 15% for
All India Quota. These seats are allotted following
reservation principles. Reservation of 5% seats for PWD is
applied horizontally.
2. Clause 4.1.5 of Ext.P1 Prospectus reads as
follows:
"Mandatory Reservation: Leaving the seats set
apart for All India Quota, Government of India
Nominees, Special reservations, Persons with
Disabilities, all types of supernumerary seats
sanctioned and Management Quota, the remaining
Government seats for each course in
Govt./Aided/KAU/KVASU/KUFOS Colleges will be
distributed as per the mandatory reservation principle
W.P.(C) No.12332/2021
as contemplated in G.O. (P) 208/66/Edn. dated
02.05.1966, G.O.(Ms) No.95/08/SCSTDD dated
06.10.2008, G.O.(Ms) No.10/2014/BCDD dated
23.05.2014 and as modified from time to time."
3. The petitioners' grievance is that enforcing Clause
4.1.5 of Ext.P1 without applying horizontal reservation
principles settled by the Apex Court is arbitrary and violate
the petitioners' right to equality.
4. The learned Government Pleader entered
appearance and resisted the writ petition. The Government
Pleader argued that the writ petition is filed inter alia
challenging Clause 4.1.5 of the KEAM-2021 Prospectus. The
point urged by the petitioners seems to be that leaving the
seats set apart from All India Quota, which comes to 15%,
the principle of mandatory reservation shall be applied in the
remaining number of seats. In this regard, only Clause 4.1.5
of the Prospectus is brought under challenge in this writ
petition. Clauses which provides for setting apart of seats in
favour of nominees of the Government of India, nominees
from Union Territories of Andaman Nicobar Islands,
W.P.(C) No.12332/2021
nominees from Lakshadweep and nominees from Jammu
and Kashmir namely Clause 4.1.11 of the Prospectus are not
under challenge. Likewise, Clause 5.3 of the Prospectus
which provides for reserving seats for candidates with bench
mark disabilities as stipulated in Section 32 of Persons With
Disabilities Act, 2016 is also not under challenge. The
principle of reservation can be applied only in respect of
seats which are at the disposal of the State
Government/Commissioner of Entrance Examinations. As
can be seen from Clause 4.1.11 of the Prospectus, the seats
mentioned therein are not at the disposal of the Government.
5. In the present case, the classification of Persons
with Disabilities candidates and providing a separate quota is
feasible under law and the principles of communal
reservation need not be applied in that quota. There is
nothing wrong in the State Government setting apart a
definite percentage of educational seats exclusively for
Persons with Disabilities candidates.
W.P.(C) No.12332/2021
6. I Have heard the learned counsel for the
petitioners and the learned Government Pleader
representing the respondents.
7. Regarding Persons with Disabilities quota, it is
settled law that the State can identify classes of persons who
are having distinct characteristics or disadvantages and treat
them separately under law. Persons having disability form a
homogenous class by itself where disability is not on the
basis of social backwardness but on the basis of physical
disability. It is relevant to point out that the claim of the
petitioners for reservation is traceable to Article 15 which is
an enabling right. The claim of the PWD persons traces to a
statute promulgated for the purpose of implementation of a
Constitutional mandate. Therefore, it is by virtue of the
statute, Persons with Disability are treated as a homogenous
class irrespective of social classification. Such a valid
classification cannot be sought to be impeached by way of
linking it with Article 16 or Article 15 which does not apply.
W.P.(C) No.12332/2021
8. Now, the next question is that whether it is
possible to provide a separate quota for Persons with
Disabilities candidates. It is settled principle of law that the
State can provide for different channel in the matter of
admission. In K.Duraisamy v. State of Tamil Nadu [(2001)
2 SCC 538], the Apex Court held as follows:
i) The Government possesses the right and
authority to decide from what sources the admissions
in educational institutions or to particular disciplines
and courses therein have to be made and that too in
what proportion;
ii) That such allocation of seats in the form of
fixation of quota is not to be equated with the usual
form of communal reservation and therefore, the
constitutional and legal considerations relevant to
communal reservations are out of place while
deciding the case based on such allocation of seats;
iii) That such exclusive allocation and
stipulation of a definite quota or number of seats
between in-service and non-service or private
candidates provided two separate channels of entry
and a candidate belonging to one exclusive quota
cannot claim to steal a march into another exclusive
quota by advancing a claim based on merit. Inter se
merit of the candidates in each quota shall be
determined based on the merit performance of the
candidates belonging to that quota;
iv) That the mere use of the work
"reservation" per se is not decisive of the nature of
allocation. Whether it is a reservation or an
allocation of seats for the purpose of providing two
separate and exclusive sources of entry would
depend on the purpose and object with which the
W.P.(C) No.12332/2021
expression has been used and that would be
determinative of the meaning, content and purport of
the expression. Where the scheme envisages not a
mere reservation but is one for classification of the
sources from which admission are to be accorded,
fixation of respective quota for such classified groups
does not attract applicability of considerations
relevant to reservation simpliciter.
In the above circumstances, the writ petition is
devoid of any merit and it is dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/07.01.2022
W.P.(C) No.12332/2021
APPENDIX OF WP(C) 12332/2021
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE RELEVANT EXTRACT OF
THE PROSPECTUS KEAM 2021.
Exhibit P2 TRUE COPY OF THE BOARD OF HIGHER
SECONDARY EXAMINATION CERTIFICATE OF
1ST PETITIONER.
Exhibit P3 TRUE COPY OF HIGHER SECONDARY
EXAMINATION CLASS XI, MARCH 2020 SCORE
SHEET OF THE 2ND PETITIONER.
Exhibit P4 TRUE COPY OF THE HIGHER SECONDARY
EXAMINATION MARCH 2201 SECOND YEAR
ADMISSION TICKET OF 2ND PETITIONER.
Exhibit P7 TRUE COPY OF THE EXTRACT OF RELEVANT
RESERVATION OF SEATS AIIMS, NEW DELHI.
Exhibit P8 TRUE COPY OF THE NOTICE U-
12021/06/2021-MEC DATED 29.07.2021.
Exhibit P9 TRUE COPY OF THE LETTER
NO.K2/230669/2020/DME DATED 08.03.2021
ALONG WITH ENGLISH TRANSLATION MEMO.
Exhibit P9(A) TRUE COPY OF THE ALLOTMENT LIST
ENDT.NO.K2/230669/DME/503 FOR MBBS AND
BDS SEATS TO NOMINEES FOR THE ACADEMIC
YEAR 2018-19.
Exhibit P10 TRUE COPY OF THE LETTER
NO.A1/3955/219/CEE/RTI DATED
10.10.2019 ALONG WITH ENGLISH
TRANSLATION MEMO.
Exhibit P10(A) TRUE COPY OF THE LETTER AND RELEVANT
DOCUMENT NO.K2/131413/2019/DME/582
DATED 14.10.2019 ALONG WITH ENGLISH
TRANSLATION MEMO.
RESPONDENTS' EXTS
R5(a) COPY OF GO DT 2.5.1966.
R5(b) COPY OF JUDGMENT DT 4.3.2020 IN WPC.17558/2019.
