Nitin Aggarwal v. State Of Kerala

A. Muhamed Mustaque, J.These batch of writ petitions are filed by the candidates who are aspiring admission for medical/P.G. Super Speciality Course, 2014. The common ground in all these writ petitions is challenge regarding clause 3.1.3 of the prospectus of admission for Super Speciality Course reserving 50% of seats to the candidates of Kerala origin. In W.P.(C).20562/2014, the petitioner has an additional prayer to read down the above clause in the prospectus to treat as an institutional preference instead of reservation of 50% to the candidates of Kerala origin as contemplated in clause 3.1.3. The clause 3.1.3 reads as follows:

Clause 3 eligibility for admission:

3.1.3 Indian citizen : not exceeding 50% of the seats in each speciality are set apart for Indian citizen of Kerala origin for a selection based on the rank in the rank list.

2. According to the petitioners, they are eligible candidates and have appeared for the entrance examination conducted for admission to Super Speciality Courses by Commissioner for Common Entrance Examinations. According to the petitioners, the above clause is unconstitutional as no reservation is possible in view of the various judgments of the Honble Supreme Court declaring that reservation based on domicile is unconstitutional in Super Speciality. The petitioners have relied on Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, ; Dr. Jagadish Saran and Others Vs. Union of India (UOI), ; Dr. P.G. Sreevasthava and another v. State of M.P. and others [ (1997) 7 SCC 120 ]; Saurabh Chaudri and Others Vs. Union of India (UOI) and Others, ; Vishal Goyal and others v. State of Karnataka; Nikhil Himthani Vs. State of Uttarakhand and Others, ; Mohammed Sulaiman Vs. Director of Medical Education, .

3. Counter affidavit has been filed by the first respondent on behalf of the Government. It is stated in the counter affidavit that State of Kerala did not earmark wholesale reservation for super speciality courses for candidates having Kerala origin and the petitioners are eligible to be considered for the 50% of seats other than quota earmarked of candidates of Kerala origin. The State has justified action for the reason that the State is facing acute shortage of specialities in various specialities and the State require more specialities which can be fulfilled only by generating specialists exclusively for the State utilising State infrastructure. It is further stated that without such quota being earmarked for the candidates of Kerala origin, State Government would not be able to find out sufficient number of candidates to one exclusively for State of Kerala. It is stated further that non Keralite candidates after taking P.G. Super Speciality Degree, are not interested in and do not impart their service for State of Kerala. The case of the State is that having expended huge money from Public Exchequer, State expects reciprocal service of specialists for the ultimate benefit of the people in Kerala. Party respondents, who are admitted in the quota of 50% earmarked for candidates of Kerala origin have also supported the stand of the State and submitted that such action of the State is justifiable in the light of judgments Saurabh Chaudri (supra), Dr. Pradeep Jain (supra), K. Duraisamy and Another Vs. The State of Tamil Nadu and Others, , Dr. Saurabh Jain and Others Vs. State of Kerala and Others, . It is also contended by the Government as well as party respondents that reservation is possible under the various judgments relied by them. However, it is also contended that the attempt of the State in the prospectus is not to provide the reservation by relaxing the norms, but only an identification of separate source or channel of admission through candidates of Kerala Origin.

4. In the light of pleadings and contentions before me, the following points arise for consideration:

i. Whether reservation is impermissible in medical P.G. Super Speciality

ii. Whether different source or channel of admission is permissible for admission in Super Specialty.

iii. Whether clause 3.1.3 in the prospectus providing 50 percent quota to the candidates of Kerala Origin for admission amounts to reservation or a separate source or channel of admission.

iv Whether clause 3.1.3 in the prospectus providing 50 percent quota to the candidates of Kerala Origin is a reasonable classification.

5. Before adverting to the rival contentions, it is necessary to advert to the principle of judicial review and the standard of review in the matter where constitutionality of the clause in the prospectus is under challenge.

6. The judicial determination of constitutionality of legislation or government decision always depends upon the context in which constitutionality of the action is challenged. The standard of challenge of a clause providing reservation though in the broader line may be couched on the parameters of Article 14 of the Constitution of India, justification of such action, necessarily, must find a place to rest on Articles 15(4) as the case may be. In a challenge made against an action which is not referable under the exercise of power referred under Articles 15(4), it can be only tested under the ambit of Article 14 of the Constitution of India. Article 14 forbids class legislation; it does not forbid reasonable classification for the purpose of legislation. However, in order to sustain permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and, (ii) that the differentia must have a rational relation to the objective sought to be achieved by the action in question. The classification may be founded on differential basis according to objects sought to be achieved. The validity of classification must be adjudged with reference to the purpose of law. See Budhan Choudhry and Others Vs. The State of Bihar, , State of Kerala and Another Vs. N.M. Thomas and Others, and Deepak Sibal Vs. Punjab University and Another, . Thus in this case on account of nature of challenge and justification of the action under challenge, necessarily it warrants scope of judicial review to be determined which can only possibly be finalized by determining the nature of clause which earmarked quota for the candidates of Kerala origin.

i. Whether reservation is impermissible in medical P.G. Super Specialty.

The affirmative action that contemplated under Article 15(4) of the Constitution of India in its imperative is to build an egalitarian society by taking positive measures. "Affirmative Action" is a phrase that refers to bring under-represented groups into a level playing field with others in State programme. This under-representation must be identifiable with class category mentioned in Article 15(4). Imparting education is a State function and the State is competent to provide measures for making special provision in State institutions. Question perhaps in the context of a super specialty arises is whether the State is competent to provide reservation at super speciality level ignoring national interest. The admission to Post Graduate super speciality level has been subject matter of challenge before the Honble Supreme Court on various occasions in relation to the reservation resorted by the State Government. The attempt of the State on occasions to provide wholesale reservation based on domicile has been deprecated by the Honble Supreme Court. Article 15(1) of the Constitution of India bars discrimination based on place of birth. The Honble Supreme Court in D.P. Joshi Vs. The State of Madhya Bharat and Another, held that domicile of origin or domicile of birth are different from the words "place of birth", and if domicile of birth and place of birth cannot be taken as a synonymous, then the prohibition enacted under Article 15(1) against discrimination based on place of birth cannot apply to discrimination based on place of domicile. It is in this background the quota earmarked for the Kerala origin has to be decided on constitutionality of challenge of reservation put forward by the petitioners. In Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, , the question that arose before the Honble Supreme Court was regarding wholesale reservation made by some of the State Governments in admission to Medical Colleges in favour of students within the State based on domicile. The incidental question regarding institutional preference in admission have also been raised before the Honble Supreme Court. Though the issue regarding reservation in Super Speciality directly not involved in the matter, the Honble Supreme Court observed that there should be no reservation at all even on the basis of institutional preference in super specialities such as neuro surgery and cardiology and admission should be granted purely on merit on all India basis. In Dr. Preethi Sreevastava and another v. State of Madhya Pradesh and others [ (1999) 7 SCC 120 [LQ/SC/1999/702] ], the question is with regard to reservation for admission to Post Graduate courses in Engineering and Medicine, is it open to State to prescribe different criteria. The concern of the Honble Supreme Court in the above cases is regarding reservation prescribing lower percentage of qualifying marks for reserved category candidates. The Honble Supreme Court in the above cases overruled the judgment in Post-Graduate Institute of Medical Education and Research etc. Vs. K.L. Narasimhan and another etc., insofar as it lays down lowering standards after holding that standard of education at higher level, excellence cannot be compromised. It was also observed by the Honble Supreme Court that at the level of the admission to the Super Speciality courses no reservation is permissible, that being contrary to the national interest, merit alone can be the basis of selection. In Saurabh Chaudhris case, a question arose before the Honble Supreme Court regarding constitutional validity of reservation whether based on domicile or institution, in the matter of admission into Post Graduate courses in Government run medical colleges. It was held as follows:

"We are therefore of the view that so far as admissions to post-graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post-graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or University, may be given preference for admission to the post-graduate course in the same medical college or University but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admission to the MBBS course. But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all-India basis."

(emphasis supplied by me)

In Nikhil Himthani Vs. State of Uttarakhand and Others, a question arose in the contention of admission in Post Graduate Medical Course in the State of Uttarakhand wherein eligibility criteria is fixed based on the nativity of the State and also for the candidates who have passed examination from the Medical College in the State. The Honble Supreme Court held as follows:

"we now come to Clauses 2 and 3 of the eligibility criteria in the Information Bulletin. Under Clauses 2 and 3, a domicile of Uttarakhand who has passed MBBS from a medical college of some other State having been admitted either through the 15% all-India quota or through the pre-medical test conducted by the State Government concerned has been made eligible for admission to a post-graduate medical course in the State quota. Obviously, a candidate who is not a domicile of Uttarakhand State is not eligible for admission to the post-graduate course under Clauses 2 and 3 of the eligibility criteria. Preference, therefore is given only on the basis of residence or domicile in the State of Uttarakhand under Clauses 2 and 3 of the eligibility criteria and such preference on the basis of residence or domicile within a State has been held to be violative of Article 14 of the Constitution in the case of Pradeep Jain and Ors. v. Union of India and Ors. and Magan Mehrotra and Ors. v. Union of India and Ors."

In Vishal Goyal and Others Vs. State of Karnataka and Others, the challenge is regarding exclusion of other candidates other than candidates of Karnataka origin for appearing for entrance test in Post Graduate Medical course. The Honble Supreme Court held that prescription of exclusive reservation in favour of candidates of Karnataka origin is ultra vires of Article 14 of the Constitution of India and is null and void. In Dr. Mohammed Sulaimans case (supra), the challenge made before this Court was regarding the clause prescribing eligibility for application in Post Graduate Medical course. The clause prescribed was that Indian citizen of Kerala origin or those who have been residents of Kerala for a period of at least eight years are eligible to apply for Post Graduate Medical course. The Division Bench of this Court sustained the challenge and struck down the exclusive reservation.

7. Basic idea to eschew the concept of reservation at higher level of education such as super speciality is an attempt to obviate scale of equal opportunity to run in conflict with national interest (on the premise of compromising excellence is against the national interest) and to remove the closed partiality of choice of local perspectives and prejudices of federal States in realm of unitary scheme of the Constitution while holding that level of distribution of opportunities must remain equal through affirmative action at Under Graduate or Post Graduate level and not beyond. This view also have been reiterated in Ashok Kumar Thakkur Vs. Union of India [(2008 (6) SCC] wherein it was held as follows:

Equality and Excellence are two conflicting claims difficult to be reconciled. The Constitution, in order to ensure true equality provides for special treatment to socially and educationally backward classes of citizens which is obviously desirable for providing social justice, though at the cost of the merit. However, the Constitution does not provide at all for institutional reservation. Therefore, its constitutionality is to be judged on the touchstone of Article 14. A large number of cases cropped up in this area concerning the institutional preference for admission into post graduate medical institution and super specialties. The judiciary came forward and laid down detailed principles covering the need of such preference and to limit the extent of such reservation in view of the importance of merit in the context of national interest and international importance of universal excellence in super specialities"(para. 324 per Pasayat J.)

Therefore underlying principles in the judgments referred above do not allow reservation at Super Specialty level.

ii. Whether different source or channel of admission is permissible for admission in Super Specialty.

8. The reservation normally considered based on measures relaxing norms. In classification based on non-reservation category, there cannot be a relaxation of general norms that applicable to all, as such classification is not traceable to affirmative action as contemplated under Article 15(4). No class legislation is possible to provide quota or reservation either by domicile or communal. The wholesale reservation based on domicile has already been struck down. Therefore, question is whether classification is permissible based on intelligible criteria having nexus with the object sought to be achieved. There is no bar under the constitution for the State to take measures consistent with the Scheme of Article 14 of the Constitution of India. The subject of reservation is to benefit the class referred on account of its status mentioned in Article 15(4), on other hand segmented classification providing different source of admission is generally to promote state interest, though beneficiary may be a class. In former case classification must satisfy the criteria under Article 15(4) and in later there must be a reasonable nexus between the classification and object sought to be achieved. The dominant test to distinguish the classification is the immediate end or objective of discrimination. Thus State can provide reservation in educational institution for promoting class interest and separate channel of admission for promoting state interest. See the following judgments of Honble Supreme Court:

In K. Duraisamy and Another Vs. The State of Tamil Nadu and Others, it was held as follows:

"12. The mere use of the word reservation per se does not have the consequence of ipso facto applying the entire mechanism underlying the constitutional concept of a protective reservation specially designed for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes to enable them to enter and adequately represented in various fields. The meaning, content and purport of that expression will necessarily depend upon the purpose and object with which it is used. Since reservation has diverse nature and may be brought about in diverse ways with varied purposes and manifold objects, the peculiar principles of interpretation laid down by the Courts for implementing reservations envisaged under the Constitution in order to ensure adequate and effective representation to the backward classes as a whole cannot be readily applied, out of context and unmindful of the purpose of reservations as the one made in this case, more to safeguard the interest of candidates, who were already in service to enable such in-service candidates to acquire higher and advanced education in specialised fields to improve their professional talents for the benefit of the patients to be treated in such Medical Institutions where the in-service candidates are expected to serve. That apart, where the Scheme envisaged is not by way of a mere reservation but is one of classification of the sources from which admissions have to be accorded, fixation of respective quota for such classified groups, the principles at times applied in construing provisions relating to reservation simpliciter will have no relevance or application. Though the prescription of a quota may involve in a general sense reservation in favour of the particular class or category in whose favour a quota is fixed, the concepts of reservation and fixation of quota drastically differ in their purport and content as well as the object............. "

In The State of Madhya Pradesh and Others Vs. Gopal D. Tirthani and Others, the Honble Supreme Court held as follows:

"There is nothing wrong in the State Government setting apart a definite percentage of educational seats at post graduation level consisting of degree and diploma courses exclusively for the in-service candidates. In the State of Madya Pradesh allocation of 20% seats in post graduation in the universities of Madhya Pradesh for in-service candidates is not a reservation; it is a separate and exclusive channel of entry or source of admission, the validity whereof cannot be determined on the constitutional principles applicable to communal reservations. Such two channels of entry or two sources of admission is a valid provision. In-service candidates, and the candidates not in the service of the State Government, are two classes based on an intelligible differentia."

9. While enabling State to provide for separate source of admission in supers speciality State cannot impinge the national interest or excellence as frowned upon as unconstitutional in the Judgments of Supreme court in not allowing reservation in super speciality. The State cannot also be permitted to reserve the entire seats based on quota. The State can fix a reasonable quota not exceeding 50% to promote its own interest. None of the decision relied by the petitioners inhibit the State from forming such classification based on the need of the State. It is also to be noted that State cannot be permitted to achieve through separate source, what it cannot achieve by providing reservation. However, State can be permitted to have a separate source in super speciality without compromising excellence or merits.

10. Thus, in the light of discussion as above, I hold that separate source of admission in super speciality is possible, subject to test of reasonable classification.

iii. Whether clause 3.1.3 in the prospectus providing 50 percent quota to the candidates of Kerala Origin for admission in super specialty amounts to reservation or a separate source or channel of admission.

11. This clause is not based on place of birth or place of residence, on the other hand, as clearly indicated in clause 9.5 which mandates documents to be produced establish "Nativity", the requirement is only to establish relation with the State either through candidate himself or through parents. The classification is for reservation or separate channel, has to be adjudged from the purpose for which classification is made. The purpose of classification is clearly mentioned in para. 5 of the counter affidavit. The States compelling need is projected, to have the service of specialist of high genre in the health service. State experiences acute shortage of such specialists. Intention of the State is clear, to promote its own requirements in health care. This clause does not seem intended to promote any class interest based on place of residence. Therefore, I am of the view that clause 3.1.3 does not provide for reservation and only provides separate channel of admission.

iv Whether clause 3.1.3 in the prospectus providing 50 percent quota to the candidates of Kerala Origin for admission in super specialty is a reasonable classification.

12. In view of the discussion afore-noted reservation is impermissible for admission in medical super speciality, however, separate source of admission without compromising excellence is possible.

Therefore, this Court has to adjudge whether the clause 3.1.3 is a reasonable classification without compromising excellence.

13. There is no dispute to the fact that candidates aspiring for admission under the quota of Kerala Origin will have to satisfy common entrance being conducted where the minimum qualifying marks would be 50%. There is no relaxation of any marks for the candidates aspiring in Kerala origin quota. Thus, the only difference is that other candidates cannot be considered for the Kerala origin quota on account of their status as non-Keralite.

14. The constitutionality of the State action is tested on the nature of the wisdom exercised by the State, i.e., whether it has any nexus with the object sought to be achieved and not with the reason that it may be proved wrong or will be found as futile exercise i.e., ultimate result that may be achieved by the wisdom. Governmental wisdom that candidates of Kerala origin may settle down in State of Kerala benefiting State is perhaps strengthened by proverbial quote of William James that "pessimism leads to weakness, optimism to power". Any responsible Government need not be found fault with such optimistic thinking. The State is the best judge to decide what benefits the people, even if such decision may be proved as an erroneous adventure by experience, the fate of constitutionality of such decision do not depend upon the ultimate result it may achieve. The classification rationale alone matters to test its constitutionality. In Pradeep Jains case (supra) it was held as follows:

"that the claim of state interest in providing adequate medical service to the people of state by imparting medical education to students who by reason of the residence in the State would be likely to settle down and serve the people of the State as doctors has thus been regarded by the court as a legitimate ground for laying down residence requirement for admission to medical colleges in the State".

In Gopal D. Tirthani case (supra) the Supreme Court justified the permissibility of using territories or the nature of objects or occupation or the like, as basis for classification. It was further held that so long as there is a nexus between the basis of classification and the object sought to be achieved, the classification is valid (see para 21). (emphasis supplied) In Dr. Jagadish Saran and Others Vs. Union of India (UOI), Supreme Court held as follows:

"equality is not negated or neglected where special provisions are made with the larger goal of the disabled getting over their disablement consistently with the general good and individual merit. If a region is educationally backward or deficient in medical service, there occurs serious educational and health service disparity for that human region which must be redressed by an equality and service minded welfare state."

15. The compelling need of the State projected in the counter has rationale and nexus with the object sought to be achieved. It can be gainsaid compelling State purpose is narrowly tailored by geographical identification, as homogenous need of States populous cannot be better achieved by any other measures than securing through quota of State origin provided in the prospectus. Health care is important function of the State. Devising different methods to achieve laudable objective to have sufficient number of specialist doctors in the State, should be the professed norm of a responsible Government in the welfare State.

16. The concern expressed by the Honble Supreme Court in various judgments referred as above in Pradeep Jains case, Saurabh Chaudris case etc is that by any relaxation for the purpose of reservation in super speciality, excellence cannot be compromised as it would be detrimental to the National interest. Therefore, the State to promote its own interest cannot be allowed to compromise with excellence. Thus, any classification has to be tested for the reasonableness on the anvil of the National interest as well. It is to be noted here no relaxation of marks have been provided for candidates of Kerala origin. They have to compete equally with other candidates. They are required to satisfy the minimum qualification prescribed in the Regulation by Medical Council of India. Many of the decisions rendered by the Honble Supreme Court are prior to regulatory scheme of Medical Council of India providing standard in medical education. Mere tenuous difference in ranking cannot be the yardstick to decry efficiency or excellence. In the absence of compromise on merits of the candidates, the classification for admission by separate source based on intelligible criteria can be justified. Further, the State, evenly balancing 50 percent quota for competition among general quota, a balance has been struck to protect the national interest by proving that State acted impartially without any parochial interest, and to insulate its action within permissible limits to determine the constitutionality. Thus, to conclude, it is permissible for the Government to fix a source of admission of candidates at Super speciality level for genuine, relevant and reasonable causes. It is to be noted here facts stated by the State justifying cause remain uncontroverted; Accordingly the writ petitions are dismissed. Interim orders are vacated. No costs.