Madras High Court
M.Goutham vs The Secretary/Addl. Dme on 9 August, 2018
Bench: S.Manikumar, Subramonium Prasad
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.08.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
Writ Appeal Nos.1495, 1508 and 1513 of 2018
and C.M.P.Nos.11803, 11804, 12046 and 12126 of 2018
W.A. No.1495 of 2018
M.Goutham .... Appellant
vs.
1.The Secretary/Addl. DME
Selection Committee
Directorate of Medical Education
162, Periyar E.V.R. High Road, Kilpauk
Chennai 600 010
2.The State of Tamil Nadu
Rep. by its Secretary
Ministry of Health & Family Welfare
Fort St. George, Chennai
3.The Tamil Nadu Dr.M.G.R. Medical University
Rep. by its Registrar
No.69, Anna Salai, Chennai - 600 032
4.Medical Council of India
Rep. by its Secretary
Pocket-14, Sector-8, Dwarka Phase-1
New Delhi - 110 077 .... Respondents
Writ Appeal filed under clause 15 of the Letters, against the order of the writ court, dated 06.07.2018 made in W.P.No.16389 of 2018.
For Appellant : Mr.Om Prakash,
Senior Counsel,
for Mr.Siva Shanmugam
For Respondent : Mr.C.Manishankar
Additional Advocate General
assisted by Mr.T.N.Rajagopalan,
Government Pleader
and Mr.K.Krishnamoorthy,
Government Advocate
W.A. No.1508 of 2018
Gayathri R. .... Appellant
vs.
1. The Government of Tamil Nadu,
Rep. by its Principal Secretary,
Health Department,
Secretariat, Chennai 600 009.
2. The Secretary,
Selection Committee,
Directorate of Medical Education,
No.162, Periyar EVR High Road,
Kilpauk, Chennai 600 010.
3. The Joint Secretary,
Central Board of Secondary Education,
National Eligibility cum Entrance Test (UG 2018),
Shiksha Kendra 2,
Community Centre, Preet Vihar,
Delhi 110 092.
4. The Medical Council of India,
Rep. by its Secretary,
Pocket 25, Sector B,
Dwaraka Phase 1,
New Delhi 110 077. .... Respondents
Writ Appeal filed under Clause 15 of the Letters, against the order of the Writ Court, dated 04.07.2018 made in W.P.No.16447 of 2018.
For Appellant : Mr.AR.L.Sundaresan,
SC for Mrs.AL.Ganthimathi
For Respondents : Mr.C.Manishankar
1 & 2 Additional Advocate General
assisted by Mr.T.N.Rajagopalan,
Government Pleader
and Mr.K.Krishnamoorthy,
Government Advocate
W.A.No.1513 of 2018:
Harishma Nagarajan .... Appellant
vs.
1. The Secretary,
Government of Tamil Nadu,
Health and Family Welfare Department,
Fort. St. George, Chennai.
2. The Selection Committee,
Directorate of Medical Education,
No.162, Periyar EVR High Road,
Kilpauk, Chennai 600 010.
3. The Secretary,
Medical Council of India,
Dwaraka Phase-1, New Delhi. .... Respondents
Writ Appeal filed under clause 15 of the Letters, against the order of the writ court, dated 06.07.2018 made in W.M.P.No.19581 of 2018 in W.P.No.16425 of 2018.
For Appellant : Mr.C.A.Diwakar
For Respondents 1 & 2 : Mr.C.Manishankar,
Additional Advocate General, assisted by Mr.T.N.Rajagopalan,
Government Pleader
COMMON JUDGMENT
(Common Judgment of this Court was made by S.MANIKUMAR, J) Challenge in these writ appeals is to the orders of the writ court dated 06.07.2018 made in W.P.No.16389 of 2018 (W.A.No.1495 of 2018); dated 04.07.2018 made in W.P.No.16447 of 2018 (W.A.No.1508 of 2018); and dated 06.07.2018 made in W.M.P.No.19581 of 2018 in W.P.No.16425 of 2018 (W.A.No.1513 of 2018), by which, the writ court, declined the reliefs, as sought for by the appellants.
2. Since common issues are involved in all these writ appeals, they were heard together and disposed of, by means of this common judgment.
Brief facts in W.A.No.1495 of 2018 (M.Goutham):
3. It is the case of the appellant that he was born on 05.06.2000, at Karur, Tamil Nadu. His native place is Velamboondi Village, Dharapuram Taluk, Tiruppur District and his mother tongue is Tamil and he hails from Kongu Vellalar, a backward class community. He is the first graduate in his family. He is the only son to his parents.
4. It is the further case of the appellant that, right from his childhood his ambition was to become a Doctor. Therefore, his father took extraordinary care in his education. He further stated that his father is engaged in small scale business in Kottayam, Kerala. Due to his fathers avocation, the appellant was brought to Kerala, for his school education, to ensure that adequate care is given for education. The appellant has studied in Marian Senior Secondary School, Kalathipady, Vadavathoor, Kottayam, Kerala from UKG to XII Std.
5. It is the further case of the appellant that he studied under Central Board of Secondary Education (CBSE) pattern Syllabus and completed his 10th standard, in the year 2015. He scored a cumulative Grade point average (CGPA) of 8.8 in 10th standard and that he completed his XII Std in the year 2017, and scored 383/500 marks. To secure competitive marks in NEET examination, he joined an institution and spent money.
6. Further case of the appellant is that, after completion of NEET course, he submitted the online application for NEET(UG)- 2018 exams, as a candidate belonging to Tamil Nadu; that he wrote NEET exams at Ernakulam, Kerala on 06.05.2018 and that he scored 424/720 marks {Percentile score 95.234585) in NEET exams. His All India Rank was 60,293. He applied for admission for MBBS/BDS course in Tamil Nadu, by submitting the application form given by the Secretary/Additional Director of Medical Education, Selection Committee, Directorate of Medical Education, Chennai, 1st respondent herein, along with necessary documents as required. He further submitted that he has also enclosed the Nativity Certificate dated 28.05.2018 issued by Zonal Deputy Tahsildar, Dharapuram, certifying his native place as Velamboondi Village, Tamil Nadu. According to the appellant, he has not applied for MBBS/BDS course claiming to be native of Kerala State.
7. In order to rule out the said apprehension, appellant has enclosed the certificate No.613 of 2018 dated 14.05.2018 issued by the Village Administrative Officer, Kottayam, Kerala, confirming that the Office of the Village Administrative Officer, Kottayam, Kerala, has not issued any community certificate or nativity certificate, either to the appellant or to his father.
8. The appellant has further contended that upon applying for MBBS/BDS course, for Tamil Nadu Government quota, through online, he was allotted ARN No.13612.
9. The appellant was instructed to track his application form using the said ARN number. He further stated that the 1st respondent published MBBS/BDS 2018-2019 session (Government quota) provisional rank list. His name was not included in the said list. Thereupon, he rushed to Chennai and enquired in the office of the 1st respondent regarding non inclusion of his name in the provisional rank list. However, no reasonable explanation was given to him. Subsequently, on 30.06.2018, the 1st respondent released an errata to MBBS/BDS - 2018-2019 session, and included about 95 students, in the provisional ranking list.
10. It is the further case of the appellant that he was totally devastated to see that all his efforts and marks secured by him in NEET exam, were not duly recognised by the respondents. No reasons whatsoever for not including his name in the rank list was furnished, though the appellant has secured 424 out of 720 in NEET exam.
11. The appellant has further contended that as per the community ranking given to the students by the 1st respondent, in the provisional and errata ranking list published till now, appellant has to be placed between 501 and 511 in BC category, whereas, candidates who have scored lesser marks than the appellant, have been included in the errata rank list published by the respondents.
12. The appellant has further contended that, after the introduction of Section 10-D in The Indian Medical Council Act,1956, by the Amending Act 39 of 2006, a uniform entrance examination for undergraduate and postgraduate level MBBS course has been introduced. The yardstick for selecting students to those courses is merit, subject to applicability of reservation policy of the respective state Governments. The respondents are duty bound to include the appellant's name in the Ranking list for MBBS/BDS- 2018-19 session (Government Quota), both on merit, as well as under reservation policy. The 1st respondent, without any reasons, has not included appellant's name in the ranking list. There is non application of mind on the part of the 1st respondent. The said act of the respondents is highly arbitrary, discriminatory and illegal, violating the fundamental rights of the appellant guaranteed under Articles 14 and 15 of Constitution of India.
13. It is the further case of the appellant that he sent a representation to the respondents by e-mail on 01.07.2018 requesting them to include his name in the ranking list and call him for counselling and consider his name, as against the available MBBS/BDS seats, in Tamil Nadu. Appellant has further stated that due to paucity of time, he could not send his representation by regular post. In the said representation, he has echoed his distress that was inflicted upon him due to non inclusion of his name, in the raking list, inspite of securing high qualifying marks in NEET exams. But there was no response from them. It is the contention of the appellant that the respondents are refusing to discharge the duties cast upon them.
14. The appellant has further contended that the respondents, without considering his name, against the available MBBS/BDS (Government quota) seats for 2018-19, have announced counselling between 01.07.2018 to 07.07.2018. In the event of the respondents proceeding to fill up the available MBBS/BDS seats 2018-19 (Government quota), without considering his name, the appellant may lose a seat, to which, he is legally entitled to. Therefore, he has pleaded that it is just and necessary that the respondents should be directed to permit the appellant to participate in the ongoing MBBS/BDS counselling 2018-19 (Government Quota) at Government Multi Super Specialty Hospital, Oomandurar Government Estate Chennai - 2 between 01.07.2018 to 07.07.2018.
15. On the above averments, the appellant (M.Goutham) has filed W.P.No.16389 of 2018, for a Mandamus, directing the respondents to include appellant's name in the rank list for MBBS/BDS courses 2018-2019 (Government Quota) at appropriate place as per applicable rules on the basis of 424 marks scored by him in NEET exam - 2018 and consequently direct the respodnents to call the appellant for MBBS/BDS counselling and consider petitioner's name as against the available MBBS/BDS Government Quota seats in Tamil Nadu. Appellant has also prayed for interim reliefs of permission to attend counselling and reservation of a seat.
16. Before the writ court, Mr.C.Manishankar, learned Additional Advocate General appearing for the respondents has contended that the appellant has studied in Kottayam District, Kerala and his entire education was completed at Kottayam. He has not enclosed any certificate, as required in Clause 3(f) of the Prospectus. It is the further contention of the respondents that the candidate should be a native of Tamil Nadu to invoke Clause 3(f) of the Prospectus. When M.Goutham (appellant in W.A.No.1495 of 2018) has studied at Kottayam, and going by the Certificate, dated 14.05.2018, issued by the Village Administrative Officer, Kottayam District, Kerala, it is clear that the appellant has been residing in Kerala for 20 years. Therefore, the candidate is not native of State of Tamil Nadu. According to the respondents, place of birth does not decide nativity and before the writ Court, a contention has been made that it is open to the appellant to have his case considered, under open category, but, not in the quota meant for State of Tamil Nadu.
17. After hearing the learned counsel for the parties, Writ Court, vide order, dated 06.07.2018 in W.P.No.16389 of 2018, held as follows:
"7. It is not in dispute that the petitioner was born in Tamil Nadu as per the Birth Certificate dated 13.11.2000. The fact that petitioner has studied 10th Std in the year 2015 and completed 12th std in the year 2017 from Kerala, is not in dispute. Even though the petitioner has produced Ration Card (Smart Card) of the year 2017, which is prior to the date of the certificate dated 14.05.2018, the case of the petitioner cannot be considered as candidature from the native of Tamil Nadu. The nativity certificate, at no stretch of imagination, can be based on the birth place. Birth place is where a person who lives along with brothers and sisters, but the place of the person where the education has been done and lived alone, can be taken into account for the purpose of nativity. The respondents have also produced Citizens Charter 2015, wherein it is clearly stated that a student who resides more than 5 years, has to be considered as domicile of that place. In this case, even though the candidate was born in Tamil Nadu, his entire schooling was at Kerala and the nativity certificate will have to be looked from that angle from where the education has been imparted.
8. It is relevant to extract Clause 3(f) of the Prospectus which deals with nativity.
"(f) Candidates who are Native of Tamil Nadu,but studied from standard VI to Standard XII outside Tamil Nadu either partly or completely in one or more States should produce the true copies of their parent's certificate such as, Birth Certificate /SSLC /10th /12th /Degree/Diploma /Professional course and Ration Card/Passport to substantiate their place of birth in Tamilnadu to establish the relationship between the parent and the candidate along with the Nativity Certificate of the candidate. Otherwise, they will be considered under Open Category."
9. The nativity certificate dated 14.05.2018 issued by the Village Officer, Kottayam, would make it clear that the petitioner was residing only in Kerala and that the said certificate has been obtained only for the purpose of medical counselling for the year 2018. As the petitioner and his parents are residing in Kerala and the student has studied in the State of Kerala and not in the State of Tamil Nadu, the petitioner can be treated as a candidate for the purpose of NEET outside the State of Tamil Nadu. In this case, in the so-called Certificate issued by the Village Officer, the wordings, "for the last 20 years, he is temporarily residing at Krishna Kripa, Puthanangady, Kottayam", would mean that the candidate/parent was permanently residing there, as the word " temporarily" cannot be for 20 years and the said word what has been incorporated in the said certificate for the purpose of NEET and the genuineness of the certificate itself is doubtful, is the contention of the learned counsels for the respondents, which cannot be brushed aside by this Court.
10. In the present case, the petitioner has not only selected the State of Kerala as the examination centre, but also the address is mentioned as Kerala. The Birth Certificate can no stretch of imagination, can be construed as Nativity Certificate. Even though the petitioner has mentioned in the confirmation page that the State to which the petitioner belongs to, is Tamil Nadu, as the petitioner has not satisfied Clause 3 of the Prospectus issued by the State of Tamil Nadu for admission to course, the petitioner would not be entitled to the relief sought for in the Writ petition.
11. The Apex Court, while considering the case of Minor P.Rajendran & others Vs.State of Madras and Others reported in (1968) 2 SCR 786: AIR 1968 SC 1012 has held that the dictionary meaning of the word 'nativity' is the place of birth. If we read the Prospectus more particularly Clause 3(f) of the Prospectus, in the present case on hand, the nativity cannot be construed as the place of birth. In the said case, before the Supreme Court, Rule 8 therein, was challenged and the Supreme Court held that, it was not clear as to what exactly 'nativity' means. Hence, they produced documents to show that the nativity can be construed as place of birth. In the present case on hand, such construction is not possible as the entire prospectus, more particularly in Clause 3(f), it is seen that the intention is to provide seats to the students who studied in the State of Tamil Nadu and the nativity certificate would mean not the place of birth, but the place of residence for several years of the candidate, if studied in the state of Tamilnadu.
12. In this case, admittedly, the student has studied in the State of Kerala and none of the Clauses, more particularly Clause 3(f) is not attracted to the facts of the case on hand and that the petitioner is deemed to have construed to have applied NEET -UG as candidate outside the State of Tamil Nadu and hence the relief prayed for by the petitioner cannot be granted. Accordingly, the writ petition is dismissed. No Costs. Consequently, connected Miscellaneous petitions are closed.
13. The learned counsel for the petitioner, after orders have been pronounced, stated that the petitioner's case may be considered atleast in the in the open category, as he has secured 424/720 marks. The purpose of condition in the Prospectus is to ensure that the genuine residence and the nativity of the person of Tamil Nadu, has to get a seat. If the petitioner is interested, he can try his chance in the All India Quota and cannot try to usurp the seat due to a candidate actually hails from the State of Tamil Nadu. As the petitioner has given a Nativity Certificate issued by the State of Tamil Nadu, dated 25.08.2018 and that there is a Certificate issued by the Village Officer, Kottayam dated 14.05.2018, stated supra, the veracity of both the said Certificates issued by the State of Tamil Nadu needs to be examined, as, as stated supra, no person can reside temporarily on permanent basis at Kerala."
18. Being aggrieved by the above order, W.A.No.1495 of 2018, has been filed.
Brief facts in W.A.No.1508 of 2018 (R.Gayathri):
19. It is the case of the appellant (R.Gayathri) that she was born in Chennai and studied Class I to Class VI in Tamil Nadu, and due to her mother's work, leading to transfer to Bangalore, she studied Class VII to Class XII in Karnataka. Aadhar issued to the appellant would show that she is from Tamil Nadu.
20. It is the further case of the appellant that her father is an Agriculturist and her mother is working in a private company at Bangalore. Her mother was transferred from Chennai to Banaglore in 2012. Appellant has contended that it was her dream to become a Doctor from Childhood and accordingly, she has worked hard and attended NEET examination on 06.05.2018 The mark obtained by the appellant in NEET is 371/720 and ranked/assigned was 1186.
21. It is further stated by the appellant that apart from applying for NEET exam, it is mandatory for the students to apply for counselling, so as to enable the candidates to participate in the counselling conducted by State Government for admission to colleges affiliated to the Universities in the State of Tamil Nadu.
22. The appellant has further submitted that in order to reduce the anxiety of the children, most of the schools have been helping the students to fill up the applications for the common Entrance Exam (NEET CBSE) and also to participate in the counselling conducted by the State Government. Accordingly, application of the appellant was completed and submitted through her school, based on the information given by the appellant.
23. The appellant has further contended that several documents like Aadhar, Proof of Birth, School Certificates, Ration Card, have been submitted, as per the requirement, and applications have been duly forwarded to the respondents.
24. It is further stated by the appellant that she has made application, only as native of Tamil Nadu and applied under Tamil Nadu State Government quota, and not applied for a seat under All India Quota or under the Management quota. According to her, this itself would go to prove that being a Native of Tamil Nadu, the appellant has applied only against the seats meant for Tamil Nadu State quota, and not against the seats, earmarked for any other State quota.
25. R.Gayathri (appellant in W.A.No.1508 of 2018), has further submitted that the State Government have published a list of candidates eligible for counselling on 28.06.2018 and to her shock and surprise and despite having obtained 371 marks, she has not been included in the list of eligible candidates. She has further added that the criteria required to be satisfied has been fulfilled by the appellant, but she has been deprived of a chance to participate in the counselling.
26. The appellant has further submitted that on enquiry, with Selection Committee, she was informed that "Communication Address" has been furnished in the NEET Application is Karnataka, and therefore, the same was held as disqualification, but that the said aspect has never been disclosed to her, at any point of time. According to her, it is the common knowledge that "Communication Address" would only mean the place of communication and cannot be interpreted to disqualify her claim to participate in the counselling, for the seats earmarked as Tamil Nadu State quota. The appellant was not allowed to meet the officers' concerned, when she visited the 2nd respondent instead, they have taken a complaint letter from her, but failed to give any acknowledgment.
27. Appellant has further submitted that for the above stated reasons, she ought to have been included, in the provisional list for counselling, but deprived of, to attend the First Phase of counselling held between 1.07.2018 to 5.07.2018. Appellant has further contended that, as per Clause 24 of the prospectus, if a candidate is not able to attend the First Phase of counselling, then the candidate will not be permitted to attend further phase of counselling, and if this is applied to the appellant, then, she would be put to irreparable loss, more so, when the appellant has scored very good score i.e. 371 out of 720. Appellant's score, as per Tamil Nadu ranking, is categorized, as high grade score, eligible for a high graded college. But she was not even permitted to attend the First phase of counselling, then, she will not be able to join, in a high graded college, and will lose her fair chance of getting admission.
28. It is further contended that despite the fact that the appellant and her parents, natives of Tamil Nadu, the State Government and Selection Committee have misdirected themselves to consider only the "Communication Address", given in the NEET application and failed to give weightage to the documents, like Aadhar, Birth Certificate, submitted before the respondents 1 and 2.
29. It is further stated by the appellant that action of the respondents, has not only affected her dream and aspirations, but her fundamental rights, guaranteed under Article 15 of the Constitution of India.
30. The appellant has further submitted that the Government of Tamil Nadu have issued prospectus, for admission to MBBS/BDS Degree Courses, in Tamil Nadu Government Medical/Dental Colleges and Government Seats in Self Financing Medical/Dental Colleges affiliated to the Tamil Nadu Dr.MGR Medical University & Rajah Muthiah Medical/Dental College affiliated to Annamalai University, for the year 2018-19 only on 11.06.2018, and the last date for submission is 19.06.2018.
31. It is further stated by the appellant that the action of the State Government, treating her like a alien in her Mother Land, is affecting her fundamental right to life and dignity, right to choose the profession, apart from right to choose the place of residence.
32. On the above averments, R.Gayathri (appellant in W.A.No.1508 of 2018) has filed W.P.No.16447 of 2018, for a Mandamus, directing the respondents therein, to include her application, AR No.3322 given by Selection Committee DME (Directorate of Medical Examination), in the provisional rank list published by the Directorate of Medical Examination, so as to entitle her, to participate in the counselling for admission into medical seat under Tamil Nadu State Quota.
33. After hearing the learned counsel for the parties, Writ Court, vide order, dated 04.07.2018, in W.P.No.16447 of 2018, held as follows:
"2. According to the Petitioner, her daughter viz. R.Gayathri, who was born in Chennai, pursued Classes I to VI in Tamil Nadu and Classes VII to XII in Karnataka. She further stated that her husband is an Agriculturist and that she is working in a Private Company in Bangalore. Her daughter appeared for NEET Examination on 06.05.2018 and scored 371 out of 720, and ranked as 1186. The grievance of the Petitioner is that though her daughter had applied for admission to MBBS/BDS Course as a native of Tamil Nadu and has produced requisite documents, viz. Aadhar, Birth Certificate, School Certificates and Ration Card along with the Application, she has not been included in the list of eligible candidates. On enquiry with the Selection Committee, the Petitioner was informed that the 'Communication Address' has the address that of Karnataka and that has become a criteria for disqualification.
3. It is the case of the Petitioner that 'Communication Address' would only mean the place of communication and cannot be interpreted in any other manner, more so to disqualify her daughter on such basis from participating in the Counselling under the Tamil Nadu State Quota. The Petitioner further stated that the First Phase of Counselling is scheduled between 01.07.2018 and 05.07.2018 and as per Clause 24 of the Prospectus, if a candidate is not able to attend the First Phase of Counselling, then the candidate will not be permitted to attend further Phase of Counselling and if this is applied on the candidate, then the candidate will be put to irreparable loss. Hence, the Petitioner contended that the State Government has misdirected itself to consider only the factum that 'Communication Address' given is that of Karnataka and has failed to look into and give weightage to all other documents, i.e. Aadhar and Birth Certificate, that have been placed before them.
4. Though the Respondents have not filed counter, they have produced relevant File pertaining to the Petitioner's daughter. It is seen that along with the Application Form, the Petitioner's daughter has enclosed her Nativity Certificate dated 25.09.2017, Community Certificate and Aadhar Card. That apart, she has furnished her father's PAN Card and Aadhar Card and Income Certificate.
5. Learned Additional Advocate General appearing for Respondents 1 to 3 contended that though the Petitioner's daughter claims to be a native of Tamil Nadu, she has pursued Classes VII to XII in Karnataka, and has not produced true copies of her parent's Certificates, such as, Birth Certificate /SSLC /10th /12th /Degree /Diploma/ Professional Course and Ration Card/Passport in terms of Clause 3(f) of the Prospectus, to substantiate their place of birth in Tamil Nadu and to establish the relationship between the parent and the candidate. He further submitted that the Petitioner's daughter has produced only her Nativity Certificate.
6. According to the learned Additional Advocate General, though the Petitioner claims to have furnished Ration Card, Aadhar Card, Birth Certificate and School Certificates of her daughter along with the Application, true copy of the Ration Card, which is required as per Clause 3(f) is not annexed with the Application form. It is his contention that there is no use in producing documents which are not required under clause 3(f) of the Prospectus. Learned Additional Advocate General went on to state that since the Petitioner has furnished only the Nativity Certificate of her daughter and no other requisite documents have been produced, if her case is considered, it will certainly amount to opening the Pandora's box and she is not entitled to the relief sought for, more particularly in terms of clause 3(j) of the Prospectus, which states that if the photocopies of the supporting documents are not produced, then the application form will be summarily rejected.
7. In reply, learned counsel for the Petitioner submitted that similar issue came up before this Court in the case of K.Kanimozhi vs. The Director of Medical Education, (2011 (2) CWC 394), wherein, the Petitioner therein, who did not furnish the requisite Enclosures, was permitted to participate in the Counselling. Relevant portion of the said order reads, as under:
"20. At this juncture, the learned Advocate General submits that the applications of 199 candidates, including the petitioner, were rejected on the ground of "no enclosures" and if any concession is shown to the petitioner herein, the same will open the flood gates.
21. The learned Advocate General produced the details of marks obtained by those 199 candidates, whose applications were rejected on the ground of "no enclosures". On perusal, it is found that out of 199 candidates, 47 candidates belongs to Scheduled Caste. Out of 47 candidates, the petitioner and other person alone have secured more marks than the cut off marks and others are not coming under the zone of consideration at all. In the same way, none of the B.C., and O.C.., candidates whose applications were rejected, have secured higher marks than the cut off marks and therefore, they could not come under the zone of consideration and only one M.B.C. candidate, secured higher marks than the cut off marks. Thus, in my view, out of 199 candidates, 3 candidates including the petitioner alone are prejudiced due to non enclosure of relevant documents. Hence, the same could not open the flood gate as contended by the learned Advocate General.
22. The submission made by the learned Advocate General looks attractive, but on deeper scrutiny, it lacks merit and thus I am not persuaded by the submission. There is a possibility that the documents could have been misplaced. The prospectus contemplates that no intimation could be made to the candidates whose applications were rejected. In this case also, the rejection was not intimated. When the petitioner on seeing that her name does not find place in the merit list, though she secured more than the cut off marks, approached this Court. Clause 14 of the prospectus contemplates rejection of application for all defects and no distinction is made between the one that could be cured and another that could not be cured. That is, the application rejected for submitting the same after last date could not be compared with some curable defects, such as no enclosures of attested copies of documents, particularly when the details of marks and other relevant details are found in the application form and O.M.R. Sheet and the original documents have to be produced only on admission. Hence, clause 14 is arbitrary. In fact, the learned Advocate General also admits the same, but he states that necessary changes could be made in the future years and this year admission should not be disturbed. I am not inclined to agree with such submission.
24. In these circumstances, in the interest of justice, I am of the view that the petitioner should be included in the merit list and should be permitted to participate in the counselling hereafter. But however, as already stated, the candidates, who were already admitted in the Government Colleges, should not be disturbed. Hence, while directing the respondents to include the name of the petitioner in the merit list so as to enable her to participate in the counselling, I make it clear that she is permitted to participate in the counselling that has to take place from tomorrow (i.e., 08.07.2011) and the students, who obtained lesser marks than the petitioner and who have already been admitted through counselling that had already taken place, should not be disturbed. The respondents are also directed to effect necessary changes in clause 14 of the prospectus in accordance with the submissions made by the learned Advocate General for coming years."
8. Heard the learned counsel on either side and perused the material documents available on record.
9. In the case on hand, the candidate has studied till Class VI in Tamil Nadu. On a perusal of the File produced by the Respondent/Selection Committee, it is seen that the candidate has not produced true copies of the documents required to be produced as per clause 3(f) of the Prospectus. However, she has produced her Nativity Certificate. While so, she has furnished a copy of the Ration Card, Aadhar Card of her Father, Degree Certificate and Passport of her mother, in the typed set of papers to the above Writ Petition. On going through the same, it is clear that the candidate as also her parents, are native of Tamil Nadu.
10. Though the documents required under clause 3(f) of the Prospectus have not been produced by the candidate, this Court is in entire agreement with the decision rendered in Kanimozhi's case (cited supra) and is of the view that the candidate shall not be thrown out on technical grounds, as her future will be affected. Whatsoever, the candidature of the Petitioner's daughter can at the most be considered only under 'Open Category'.
11. Accordingly, the Petitioner's minor daughter viz. R.Gayathri is permitted to attend the counselling under 'Open Category' and the documents that may be produced by her at the time of counselling, may be verified. Persons, who have been admitted through counselling that had already taken place shall not be disturbed.
The Writ Petition is disposed of with the above direction and observation. No costs. Consequently, connected W.M.P.No. 19651 of 2018 is closed."
34. Aggrieved by the same, W.A.No.1508 of 2018, has been filed.
Brief facts in W.A.No.1513 of 2018 (Harishma Nagarajan):
35. It is the case of the appellant that her father, Mr.B.Nagarajan, is native of Vellore District, born and brought up in Venkatapuram, Thempalli Post, Via Thiruvallam, Katpadi Taluk and belongs to Hindu-Arunthathiyar Scheduled Caste Community (SCA). Her father, a Diploma holder in Electrical and Electronics Engineering, got employment, in National Institute of Technology, but posted in Durgapur, West Bengal, since 2003. Her paternal and maternal grand fathers are retired army personnel. She was born in her mother's home town, Tirupati.
36. The appellant has further submitted that her father being stationed in Durgapur, West Bengal, she studied in Durgapur, West Bengal and competed her XII Standard from Bidhan Chandra Institution for Girls, Durgapur, in 2017. She possesses Nativity Certificate and Community Certificate issued by the Zonal Deputy Tahsildar, Katpadi, certifying her nativity, as Tamil Nadu and community as Hindu-Arunthathiyar Scheduled Caste Community (SCA). According to the appellant, she is also the First Graduate from the family and possesses a "No Graduate Certificate" issued by the Zonal Deputy Tahsildar, Katpadi and she is currently pursuing B.Tech. course at Vellore Institute of Technology, Vellore.
37. The appellant has further submitted that she has appeared for NEET 2018-2019 under Registration No.500706058 and scored 353 marks, out of 720 and obtained an All India Rank of 118852 and an All India Category Rank (SC) of 6944. The appellant has contended that being a native of Tamil Nadu, and eligible to apply for admission to MBBS, in the Government Quota, under Tamil Nadu and submitted an application No.121958 AR No.23676. However, in the ranking list, dated 28.06.2018, published by the 2nd respondent, her name was not included in the list for Tamil Nadu Government Quota seats.
38. The appellant has further submitted that from the ranking published, it is seen that SCA candidate with the NEET Score of 355, has been ranked at No.6 and the next SCA candidate with the NEET score of 345 has been ranked at No.7, in the community ranking. The appellant is a SCA candidate, with a NEET Score of 353 and therefore, she should have been ranked at No.7, in the Government Quota list and entitled to participate in the counselling.
39. Before the writ Court, placing reliance on Clause 3(f) of the Prospectus, issued by the respondent 2018-19, Harishma Nagarajan (appellant in W.A.No.1513 of 2018) has submitted that she had produced her School Certificates, Community Certificates and Nativity Certificates, along with her fathers Community Certificate and Nativity Certificate and School Certificate, in compliance with the stipulation of the abovesaid clause and therefore, before the writ Court, has pleaded that she is entitled to be ranked at No.7 in the SCA Community Category. But the respondents, in violation of the Clause 3(f) of the Prospectus 2018-2019, have failed to rank her, against the seats for Tamil Nadu State Quota. According to the appellant, being a SCA candidate, native of Tamilnadu and a First Graduate from the family, she is entitled to be ranked at No.7 in the list of candidates eligible to Tamil Nadu Government Quota seats (SCA).
40. The appellant has further submitted that her paternal family members are permanent residents of Vellore District and they are natives of Vellore, Tamilnadu. Appellant has a constitutional right, to be treated, on par with other similarly placed candidates, and her entitlement to secure a seat under Tamil Nadu Government Quota seat, has been infringed and violated.
41. According to her, respondents have announced that counselling would start on 01.07.2018, for physically challenged and sports persons. Her counselling would fall on 06.07.2018. If she is not permitted to participate in the Counselling for the seats earmarked for Tamil Nadu State quota, based on her communal ranking, she would be put to irreparable loss. Her father had sent a representation on 29.06.2018 to the Selection Committee, Directorate of Medical Education, 2nd respondent herein, pointing out the gross injustice caused to her.
42. On the above averments, Harishma Nagarajan (appellant in W.A.No.1513 of 2018) has filed W.P.No.16425 of 2018, for a Mandamus, directing the Second Respondent to include the appellant in the Rank List for Government Quota seats in the category of SCA for MBBS course for the academic year 2018-2019 and permit the appellant to participate in the Government Counselling.
43. After hearing the learned counsel for the parties, Writ Court, vide order, dated 06.07.2018, in W.M.P.No.19581 of 2018 in W.P.No.16425 of 2018, has directed the respondents to permit the appellant to participate in the counselling, in open category. Order reads thus, "2. According to the Petitioner, she did her entire Schooling from Basic Education to 12th Standard in West Bengal and that she is a first Graduate in her family. It is her case that in terms of clause 3 of the Prospectus for the year 2018-2019, her candidature has to be considered.
3. Mr.C.Manishankar, learned Additional Advocate General appearing for Respondents 1 and 2 submitted that even though the wording in the Writ Petition has been couched for a mandamus, indirectly, the Prospectus has been challenged and that they are yet to file a counter affidavit. That apart, in terms of clause 3(i) and 3(j) of the Prospectus, the Petitioner would not be entitled to the relief sought by her, as no document to the effect that she is a native of Tamil Nadu, has been produced by her.
4. In reply, Mr.C.A.Diwakar, learned counsel for the Petitioner contended that non-furnishing of enclosures would not defeat the claim of the Petitioner. In support of his case, he has relied on a decision of this Court in the case of K.Kanimozhi vs. The Director of Medical Education, (2011 (2) CWC 394), wherein, the Petitioner, who did not furnish the Enclosures, was permitted to participate in the counselling.
5. Learned counsel for the Petitioner further relied on a decision of the Apex Court in the case of Marri Chandra Shekhar Rao vs. Dean, Seth G.S. Medical College, (1990) 3 SCC 130, wherein, there is a reference to Circular dated 22.02.1985 issued by the Government of India, Ministry of Home Affairs, which clarifies that a Scheduled Caste/Tribe person, who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated. He also relied on a decision of the Apex Court in the case of Vishnu Traders vs. State of Haryana, 1995 Supp (1) SCC 461, wherein, it is held that in matters of Interlocutory Orders, principle of binding precedents cannot be said to apply.
6. Heard the learned counsel for the parties. Admittedly, the Petitioner did her Schooling in West Bengal and has not enclosed any of the documents required to be furnished under clause 3(f) of the Prospectus for the year 2018-2019. Though the Petitioner has mentioned in her Application that she is a native of Tamil Nadu, no documents were furnished by her in support of her nativity. However, along with the Application, the Petitioner has furnished a copy of only the first page of her Aadhar Card and the second page containing her West Bengal address has not been furnished, though, there is no need for the Petitioner to furnish a copy of her Aadhar Card as an additional document.
7. Whether the order passed by this Court in the case of K.Kanimozhi cited supra, is applicable to the present case or not, can be decided only after the counter affidavit is filed by the Respondent. There is no doubt that a person will not lose his permanent residence in the State merely on account of his absence from the State owing to his employment elsewhere in Government Service or in any occupation, trade, business or profession.
8. Considering the facts and circumstances of the case, though the candidature of the Petitioner has to be rejected at the threshold, as an interim measure, this Court directs the Respondents to permit the Petitioner to participate in the Counselling in the 'Open Category'. If the Petitioner insists that her case has to be considered in the 'Reserved Quota', the same will have to be rejected."
Aggrieved by the same, W.A.No.1513 of 2018, has been filed, on various grounds.
Submissions made in W.A.No.1495 of 2018 (M.Goutham):
44. Mr.Omprakash, learned senior counsel for the appellant submitted that the interpretation of the writ Court as regards the term 'Nativity' referred to, in clause 3 of the prospectus issued by the 1st respondent, as synonymous to "permanent residence" is fallacious. He further submitted that the writ court, has grossly misconceived the involuntary migration of the appellant to Kerala, on account of occupation of his father and thus the appellant continued his education in Kerala. The said interpretation is contrary to the very spirit and object of the 2nd respondent to ensure that only students having nativity of Tamil Nadu be given preference in allotment in MBBS/BDS under Government Quota.
45. Learned senior counsel for the appellant further submitted that writ court, erred in overlooking the vital fact that the petitioner has satisfied the requirement of clause 3(f) of the prospectus issued by the 1st respondent, inasmuch as the appellant has enclosed the family ration card of his father, which establishes his family's permanent residence in Tamil Nadu. He further contended that the writ court has mis interrupted the certificate issued by the Village Administrative Officer, Kottayam as one affirming the appellant's nativity to Kerala, while the said certificate was issued only to rule out that the appellant was not issued any certificate like nativity or community certificate to enable the appellant to apply MBBS/BDS seat in Kerala.
46. It is the further contention of the learned senior counsel that the writ court, has overlooked the nativity certificate issued by the Deputy Zonal Tahsildar, Dharapuram, affirming the appellant's nativity in Tamil Nadu, which is sine qua non, entitling the appellant to be considered under Tamil Nadu Government quota for MBBS/BDS course for the academic year 2018-2019.
47. He further contended that the writ court has erroneously concluded that a candidate born in Tamil Nadu, who completed his 10th and 12th standards, outside Tamil Nadu on account of occupation of his father, would result in change of his nativity, depriving the candidate of admission to MBBS/BDS seat in Tamil Nadu under Government quota.
48. Learned senior counsel further contended that the writ court has failed to consider and follow the well settled judicial interpretation given for the term 'nativity' by a Constitutional Bench of the Hon'ble Supreme Court reported in AIR 1968 SC 1012. Learned senior counsel further contended that the writ court, failed to consider that the act of the 1st respondent, in not including appellant's name in ranking list for MBBS/BDS 2018-19 is arbitrary, against law, in view of the fact that the application of the appellant has never been rejected by the 1st respondent, as envisaged in the prospectus.
49. Learned senior counsel further contended that the appellant has submitted his application form for NEET exam, as a candidate belonging to Tamil Nadu, and not from Kerala and thus there was no occasion for the appellant to appear in any other state, other than Tamil Nadu. It is his further contention that the first respondent, while publishing an errata list of candidates to be called for counselling, the respondents have enlisted a Backward Class candidate scoring 194 in NEET Examination, ignoring a much meritorious appellant, who had scored 424 in NEET Exam.
50. Learned senior counsel also invited the attention of this court, to the order of the writ court made in W.P. No.16425 of 2018, wherein, a similarly placed candidate (who had studied in West Bengal) was permitted to attend counselling, though in open category, but the appellant was not permitted to participate in the counselling, as a backward class candidate. It is the further contention of the learned senior counsel that the writ court, ought to have considered the high marks secured by the appellant, in the NEET examination, as the sole consideration, to entitle him, to participate in the counselling. Non consideration of the said criteria, has denied the appellant to come even within the zone of consideration (rank list), published by the 1st respondent.
Submissions made in W.A.No.1508 of 2018 (R.Gayathri):
51. Mr.AR.L.Sundaresan, learned senior counsel for the appellant submitted that the order of the Writ Court directing the appellant herein be permitted to attend the Counselling for MBBS admission under open category is erroneous, incorrect, unsustainable in law and deserves to be set aside. He further submitted that the appellant herein, hails from Gavara Hindu Naidu community, which is classified, as a backward class community, in the State of Tamil Nadu.
52. Learned senior counsel for the appellant further submitted that the appellant has been duly issued with a community certificate, certifying the community status of the appellant, as Hindu Gavara Naidu Community, vide certificate dated 17.7.2008, of the Zonal Deputy Tahsildar, Katpadi, and therefore, she cannot be considered, as a candidate, belonging to open category, and in such circumstances, directions of the Writ Court, is erroneous.
53. Learned senior counsel for the appellant further submitted that the appellant has obtained a nativity certificate, as early as on 25.9.2017, well before the last date for submission of the application for MBBS admission, for the current year, and hence the appellant should be considered, as a candidate, native State of Tamil Nadu and be given the benefit of reservation, as a backward community candidate and not under open category.
54. Learned senior counsel for the appellant further submitted that the direction of the Writ Court, to treat the appellant as one belonging to open category candidate, deprives the appellant's right guaranteed, under the Constitution of India, to claim a seat, as a candidate, belonging to backward class community.
55. Learned senior counsel for the appellant further submitted that the appellant and her parents are native of Tamil Nadu having permanent address at 3/10A, Bajanai Koil Street, Nagal Village, Gudiyatham Taluk, Vellore 635 803.
56. In support of the above contentions, attention of this Court was invited to the birth certificate of the appellant, which discloses that the appellant was born on 14.8.2000, at Kilpauk Medical College, Chennai. Further, Aadhar card of the appellant obtained as early as, in the year 2011, also shows the address as, Door No.3/10A, Bajanai Koil Street, Nagal Village, Gudiyatham Taluk, Vellore 635 803. Passport of the appellant's mother, to which reference was made shows the above said address, place of birth of the mother, in Tamil Nadu.
57. Nativity certificate has been issued to the appellant on 25.09.2017, by the Zonal Deputy Tahsildar, Gudiyatham Taluk, Vellore District, as native of State of Tamil Nadu. Having regard to the above documents, learned senior counsel for the appellant submitted that the Writ Court ought to have considered that the has appellant has satisfied the eligibility criteria, for admission to MBBS course, against the seats earmarked as Tamil Nadu quota and further submitted that in spite of the fact that the appellant having secured 371 marks, in NEET examination, on account of the direction issued by the Writ Court to consider her case, as against open category, the appellant is put to suffer prejudice and hardship.
58. Learned senior counsel for the appellant further submitted that in any view of the matter, order of the Writ Court in W.P.No.16447 of 2018, dated 04.07.2018, in depriving the status of the reserved category, is liable to be set aside. He has prayed for a direction to the respondents to include her candidature in the provisional rant list published by Directorate of Medial Examination so as to entitle her to participate in the counselling for admission for a medical seat under the Tamil Nadu Quota (Backward Class).
Submissions made in W.A.No.1513 of 2018:
59. Mr.C.A.Diwakar, learned counsel for the appellant submitted that the writ Court has overlooked the fact that the appellant had submitted a copy of her Nativity Certificate, along with her Application No.121958. He further submitted that the factum of the appellant belonging to Hindu-Arunthathiyar Scheduled Caste Community (SCA) stands established by the Community Certificate, submitted by her along with her application and that reservation conferred on the said community, by virtue of birth, cannot be denied, merely because the appellant did not enclose the copies of documents, pertaining to her father, as mentioned in Clause 3(f) of the Prospectus.
60. Learned counsel for the appellant further submitted that non-enclosure of copies of documents, pertaining to the appellant's father, along with her application, cannot be considered as fatal to her candidature, as an SCA aspirant for the MBBS course 2018-2019. He further submitted that the special reservation, as Hindu-Arunthathiyar (SCA) has been carved out from SC quota and conferred on the Community, because of their financial and educational backwardness and therefore, submitted that denial of reservation, on the ground of non-enclosure of appellant's fathers documents, militates against the policy of reservation, conferred on the said community.
61. Learned counsel further submitted that in the normal course, a candidate is required to produce the original documents for verification, at the time of Counselling and that the Selection Committee, Directorate of Medical Education, 2nd Respondent herein, would check the veracity of the information, given in the application and therefore, submitted that rejection of the appellant's candidature, as SCA candidate, even before verification, at the Counselling, is a complete traversity of justice.
62. Placing reliance on a decision in K.Kanimozhi v. Director of Medical Education, reported in 2011 (2) CWC 394, learned counsel for the appellant further submitted that non-enclosure of photocopies of documents along with the application, cannot be a reason to deny counselling. It does not enable the respondents to reject the application of the appellant. He further submitted that the decision made in K.Kanimozhi's case, is upheld by the Hon'ble Supreme Court in S.L.P.(Civil) No.20533 of 2011, dated 27.07.2011.
63. Learned counsel for the appellant submitted that the appellant is not entitled to claim the benefits of reservation in the State of West Bengal, where her father is stationed, by virtue of his employment and therefore, denial of the benefits of reservation, in the appellants native state, is a transgression of her constitutional right. He further submitted that the writ Court has erred in directing the 2nd respondent to reject the appellants candidature if she insists on being considered in the Reserved Category and failed to appreciate that such direction is a complete negation of the appellant's constitutional right to be considered as SCA candidate, in her native state.
64. Learned counsel for the appellant further submitted that "Nativity Certificate" as published in the digitalindia.gov.in is a document issued by the State Governments in India through this service, certifying the Indian origin of an applicant who is or whose relations such as parents/grandparents etc lived in that particular state and thus, the appellant has satisfied the criteria for nativity Certificate and obtained a nativity certificate from the Zonal Deputy Tahsildar, Katpadi Taluk, Vellore District.
65. Learned counsel for the appellant further contended that the Writ court has failed to appreciate that the appellant did not claim dual nativity and hence satisfied "Nativity of Tamil Nadu", as set out in the prospectus. If only the appellant had applied, as native of both Tamil Nadu and West Bengal, she could be stated to have violated clause 3 of the prospectus. Writ court perused all the necessary documents for claiming nativity in Tamil Nadu. Appellant has never claimed nativity in West Bengal, as she is not native of West Bengal.
66. Learned counsel for the appellant further submitted that the appellant did not claim nativity of West Bengal, but applied for admission, against the seats, earmarked for Tamil Nadu Government quota, as native of Tamil Nadu. Having applied from West Bengal, as a domicile, she has not claimed as Native of West Bengal and not pursued the application as Domicile of West Bengal nor claimed nativity of West Bengal and therefore, submitted that the directions of the writ court to the 2nd respondent to reject the appellants candidature, if the appellant insists on being considered in the Reserved Category, would cause prejudice and hardship to the appellant.
67. According to the learned counsel, as per Clause 3(k) of the prospectus for admission to MBBS/BDS course in Tamil Nadu Medical/Dental Colleges and Government Seats in Self Financing Medical / Dental colleges, affiliated to Tamil Nadu Medical University-2018-19, "Even if he/she has got an option to apply in more than one State, and if the candidate applies in Tamil Nadu, as native of Tamil Nadu, he/she cannot apply to any other state showing that state as Native.
68. Per contra, taking this Court through Clause 3(f) to the Instructions to the candidate, Mr.Manishankar, learned Additional Advocate General, appearing for the respondents submitted that admittedly, the candidate/appellant, studied from Standards VI to XII, outside Tamil Nadu and as per the said clause, he has to submit true copies of his parents' certificates, such as, Birth Extract/SSLC/10th/12th /Degree/Diploma/Professional course and Ration Card/Passport, to substantiate their place of birth in Tamil Nadu to establish the relationship between the parent and the candidate along with the Nativity Certificate of the candidate. Except Ration Card, the appellant in W.A.No.1495 of 2018 (M.Goutham), has not produced other documents. Certificate of the Village Administrative Officer, Kottayam, also shows that the appellant has been residing in Kottayam, Kerala State.
69. It is the contention of the learned Additional Advocate General, Government of Tamil Nadu that the errata list published by the Selection Committee, Directorate of Medical Education, Chennai, was on the basis of the ranking of the candidates, subject to satisfying the requirements under clause 3(f) of the Prospectus. He further submitted that revised rank list has been issued, pursuant to the orders of this Court in W.P.No.23656 of 2018, etc. batch, which has no relation to the dispute, relating to the issue of nativity.
70. Learned Additional Advocate General further submitted that many candidates from other States, have knocked away the seats meant for candidates, who are native of Tamil Nadu, and therefore, a through scrutiny was made. To weed out any malpractice, clause 3(f) was included in the prospectus. According to him, when a candidate fails to submit the required documents, as per Clause 3(f) of the Prospectus, then his candidature is liable to be rejected. He further submitted that the genuineness of the data sheet, said to have been issued by the Government of Tamil Nadu, has to be ascertained.
Heard the learned counsel appearing for the parties and perused the materials available on record.
From the application form submitted to the Selection Committee for Admission to MBBS/BDS course, for the year 2018-19, it could be seen that the appellant (M.Goutham) in W.A.No.1495 of 2018 has enclosed the following documents:
(i) Birth Certificate copy of the appellant, is extracted hereunder:-
BIRTH CERTIFFICATE (Issued Under Section 12/17 of Central Act of Birth and Death 1969) INAM KARUR SPECIAL GRADE TOWN PANCHAYAT OFFICE This is to Certify that the following information has been taken from the original record to BIRTH which is the register for the year 2000 (local area) INAM KARUR of Taluk KARUR of District KARUR of State TAMILNADU.
Name : Gowtham Sex : Male Date of Birth : 05.06.2000 Place of Birth : Pirtha Nursing Home, Karur Name of Father : Muthusamy Name of Mother : Nallathai Registration No : 778/2000 Date of Registration : 20.06.2000 Office Seal Signature of issuing authority
(ii) Community Certificate copy of the appellant, is extracted hereunder:-
"Sl.No: 804/2013 Dated : ---05-2013 District Code : 0-7 Taluk Code : 0-3 Certificate No: 10484421 Village Code : 0-3-1 COMMUNITY CERTIFICATE
This is to certify that M.GOWTHAM son/ daughter of Thiru. MUTHUSAMY of VELLAMPOONDI Village / Town DHARAPURAM Taluk TIRUPPUR District of the State of Tamil Nadu belongs to HINDU KONGU VELLALAR Community, which is recognized as a Backward Class as per Government Order (Ms.) No. 28, Backward Classes and Most Backward Classes Welfare, dated 19th July 1994 vide Serial No.61.
It is certified that Thiru/Tmt./Selvi. GOWTHAM.M and his /her family ordinarily reside(s) at VELLAMPOONDI Village/Town DHARAPURAM Taluk TIRUPPUR District if Tamil Nadu.
Seal Signature:
Date : 27.05.2013 Name (in Capital Letters) : P.Thagavel Designation: Zonal Deputy Tahsildar, Dharapuram"
(iii) Copy of Family Card of the appellant's father, issued by the Government of Tamil Nadu, is extracted hereunder:-
jkpH;ehL muR czt[g;bghUs; tH';fy; kw;Wk; Efh;nthu; ghJfhg;g[j;Jiw GOVERNMENT OF TAMILNADU CIVIL SUPPLIES CONSUMER PROTENTION DEPARTMENT FLk;g ml;il/FAMILY CARD FLk;gj; jiytupd; bgau; ehr;rpKj;J rpd;Kj;Jr;rhkp je;ij - fzthpd; bgau; Kj;Jr;rhkp gpwe;j njjp 31-12-1940 Kftup bry;ypghisak;g[Jhh;
mhpf;fhuz;tyR.
ntyk;g{z;o. jpUg;g{u;.
jkpH;ehL ? 639201 FLk;g cWg;gpdh;fs; Ration Card No.32GB065P1 1/Kj;Jrhkp 2/g/ey;yjk;gp 3/bfsjk;
(iv) Nativity Certificate of the appellant, dated 28.05.2018, issued by the Zonal Deputy Tahsildar, Dharapuram Taluk, Tiruppur District, Tamilnadu, is reproduced hereunder:-
R.Dis : 5462 / 26-05-2018 gpwg;gplr; rhd;wpjH;
NATIVITY CERTIFICATE rhd;wpjH; vz; :EAA767986B687E86 ehs; : 28-05-2018 K/bfsjk; je;ij bgau; Kj;Jr;rhkp. jpUg;g{h; khtl;lk; jhuhg[uk; tl;lk;. ntshk;g{z;o fpuhkk;. fjt[ vz; 0. 0. bry;ypghisak;g[Jhh; vd;w Kfthpapy; epiyahf trpj;J tUfpwhh; vd rhd;wspf;fg;gLfpwJ/ This is to certify that M.GOUTHAM son of Thiru N.Muthusamy residing at Door No.0, Sellipalayampudur Arikkaranvalasu Po is a native of VELAMBOONDI Village / Town of Dharapuram Taluk of Tiruppur District, Tamil Nadu State.
kpd;ifbahg;gk; /Digital Signature : 26-05-2018 md;W 8: 11 :9 AM neuj;jpy; ,lg;gl;lJ/ bgau; / Name : Tmt. Pankajam gjtp/Designation : kz;ly Jiz tl;lhl;rpah;/Zonal Deputy Tahsildar ,lk;/Place: jhuhg[uk; tl;lk;/Dharapuram Taluk, jpUg;g{h; khtl;lk;/ Tiruppur District Fwpg;g[/Remarks:
1.,j;jfty;fs; 28?05?2018 md;W 10: 30 :8 AM neuj;jpy; mr;rof;fg;gl;lJ/ The certificate was printed on 28-05-2018 at 10:30:8 AM hrs. 2/ Mtz tptur';fis nkYk; cWjp bra;Jf;bfhs;s ntz;Lbkdpy; jh';fs; tl;lhl;rpau; mYtyfj;ij mQqfp cWjpg;gLj;jpf;bfhs;st[k;/ Further certificate confirmation and details you may approach Tahsildar concerned."
From the application form submitted to the Selection Committee for Admission to MBBS/BDS course, for the year 2018-19, it could be seen that the appellant (R.Gayathri) in W.A.No.1508 of 2018 has enclosed the following documents:
(i) Nativity Certificate issued by the Government of Tamil Nadu, is extracted hereunder:-
NATIVITY CERTIFICATE R.Dis. 101 / 25-09-2017 Certificate No: BFE7766A6B687D86 Date: 25-09-2017 This is to certify that GAYATHRI R daughter of Thiru RATHAKRISHNAN residing at Door No.3/10A, PAJANAI KOVIL STREET NAGAL is a native of Nagal village/Town of Gudiyatham Taluk of Vellore District, Tamil Nadu State.
Digital Signature: 25-09-2017 Time 2:12:42 AM.
Name: Kalaivani T Designation : Zonal Deputy Tahsildar Place: Gudiyatham Taluk, Vellore District Remarks:
1. This certificate was printed on 25-09-2017 at 10:11:15 AM hrs.
2. Further certificate confirmation and details, you may approach Tahsildar concerned.
(ii) Community Certificate, dated 17.07.2008, issued by the Zonal Deputy Tahsildar, Katpadi, is extracted hereunder:-
R.Dis.2493 / 2008 Dated 17/07/2008 District Code: 0-3 Taluk Code: 0-8 Village Code: 0-0-4 8199322 COMMUNITY CERTIFFICATE This is to certify that R.Gayathri Son / Daughter of Thiru.Rathakrishnan of Nagal Village / Town Katpadi Taluk Vellore District of the State of Tamil Nadu belongs to Hindu - Gavara Community, which is recognised as a Backward Class as per Government Order (Ms.)No.28, Backward Classes and Most Backward Classes Welfare, dated 19th July 1994 vide Serial No.30.
ZONAL Dy. TAHSILDAR KATPADI.
(iii) Income Certificate copy of the Appellant's brother, is extracted hereunder:-
R.Dis : 101 / 25-09-2017 INCOME CERTIFFICATE CERTIFFICATE NO.C6FB7B6A69687D86 F/m/vz; :781644655638 ehs;; : 25-09-2017 This is to certify that SURIYAVEL R son of Thiru RATHAKRISHN residing at Door No.3/10A, NAGAL PAJANAI KOVIL STREET, Street of Nagal Village / Town of Gudiyatham Taluk of Vellore District, Tamil Nadu State. His family annual income by way of Farmers, Fisherman, Hunters, Loggers etc & related workers is Rs.60000/- (Rupees Sixty Thousand only) This Certificate is issued on the basis of enquiry.
Digital Signature : 25-09-2017 Time 8:31:32 AM Name: Kalaivani T Designation : Zonal Deputy Tahsildar Place : Gudiyatham Taluk, Vellore District Remarks :
1. The certificate was printed on 25-09-2017 at 10:6:15 AM hrs.
2. Further certificate confirmation and details, you may approach Tahsildar concerned.
(iv) Aadhaar card of the appellant is extracted hereunder:-
Unique Identification Authority of India GOVERNMENT OF INDIA Enrollment No.2189/56188/07416 To R.Gayathri D/O R.Rathakrishnan 3/10A BAJANAI KOVIL STREET KILALATHUR POST GUDIYATHAM TALUK NAGAL VILLAGE Kilalathur Kilalathur Vellore Tamil Nadu - 635803 8892788827 Your Aadhaar No. 2323 6476 2097
(v) Father's Aadhaar card of the appellant, is extracted hereunder:-
GOVERNMENT OF INDIA Rathakrishnan Address:
DOB:: 15/06/1970 S/O Ranganathan, 3/10A, BAJANAI MALE KOVIL STREET, KILALATHUR POST GUDIYATHAM TALUK, NAGAL VILLAGE, Kilalathur, Vellore, Tamil Nadu - 635803 Your Aadhaar No. 9260 9366 0242 (vi) Father's PAN card, is extracted hereunder: "INCOME TAX DEPARTMENT GOVT. OF INDIA Permanent Account Number Card ASMPR2895Q Name: RATHAKRISHN R Father's Name: RANGANATHAN" (vii) Family Card of the Petitioner's Mother is extracted hereunder:- jkpH;ehL muR czt[g;bghUs; tH';fy; kw;Wk; Efu;nghu; ghJfhg;g[j;Jiw GOVERNMENT OF TAMILNADU CIVIL SUPPLIES AND CONSUMER PROTECTION DEPARTMENT FLk;g ml;il / FAMILY CARD FLk;gj; jiythpd; bgah; : jpyftjp je;ij-fztupd; bgah; : uhjhfpUc&;zd; gpwe;j njjp : 04-06-1979 Kftup : vz; 3-10A. g$id nfhtpy; bjU. fPH; Myj;Jhh; m";ry;. ehfy;. Foahj;jk; (t). ntYhh; 635803/ (viii) Passport of the Petitioner's Mother, is extracted hereunder:- "REPUBLIC OF INDIA Type: P Country Code: IND Passport No.H3755898 Surname:RATHAKRISHNAN Given Name (s): THILAGAVATHY Nationality : INDIAN Sex:F Date of Birth : 04/06/1979 Place of Birth: CHENNAI TAMILNADU Place of Issue: CHENNAI Date of Issue: 11/06/2009 Date of expiry: 10/06/2019
From the application form submitted to the Selection Committee for Admission to MBBS/BDS course, for the year 2018-19, it could be seen that the appellant (Harishma Nagarajan) in W.A.No.1513 of 2018 has enclosed the following documents:
(i) Community Certificate copy of the appellant's father, is extracted hereunder:-
CERTIFICATE No.8891 District Code : 0-3 Taluk Code : 0-3 366108 Village Code : 0-2-1 COMMUNITY CERTIFICATE
This is to certify that B.Nagarajan son of Thiru N.Bala Krishnan of Thempalli Village Wallajah Taluk North Arcot Ambedkar district of the State of Tamil Nadu belongs to Hindu-Arunthathiyar community, which is recognised as a Scheduled Caste as per G.O.Ms. No. 242BC Dated 28.3.88/ The S.C. And S.T. Orders (Amendment) Act, 1976, vide Sl.No.256.
2. It is certified that B.Nagarajan and his family ordinarily reside(s) Venkata Puram H/o Thempalli Village Wallajah Taluk North Arcot Ambedkar district of the State of Tamil Nadu.
Seal Signature:
Date: 7.7.91 Name in Capital Letters : N.DAMODARAN, Designation : TAHSILDAR, WALAJAH
(ii) Nativity Certificate copy of the appellant, is extracted hereunder:-
R.Dis : 343 / 13-06-2018 NATIVITY CERTIFICATE Certificate No: 87FB6A6A6B687E86 Dated : 14-06-2018 This is to certify that Selvi. HARISHMA NAGARAJAN daughter of Thiru NAGARAJAN residing at Door No.1, VENKATAPURAM THEMPALLI POST is a native of Thempalli Village / Town of Katpadi Taluk of Vellore District, Tamil Nadu State.
Digital Signature : 13-06-2018, Time 7:37:21 PM Name : Ravi S Designation : Zonal Deputy Tahsildar Place : Katpadi Taluk, Vellore District Remarks :
1. The certificate was printed on 14-06-2018 at 0:0:0 AM hrs.
2. Further certificate confirmation and details, you may approach Tahsildar concerned.
(iii) Community Certificate copy of the appellant, is extracted hereunder:
"R.Dis : 1067 / 18-06-2018 District Code : 0-4 Taluk Code : 0-8 Certificate No: 79FE6E6A6A687E86 Village Code : 0-7-8 COMMUNITY CERTIFICATE
This is to certify that HARISHMA NAGARAJAN daughter of NAGARAJAN residing at Door No.1 VENKATAPURAM THEMPALLI POST, Street, Thempalli Village / Town of Katpadi Taluk of Vellore District of the state of Tamil Nadu belongs to Arunthathiyar Community, which is recognized as a Scheduled Caste as per the Scheduled Caste and Scheduled Tribes Orders (Amendment) Act, 1976 vide Serial No.5.
2. It is certified that Selvi. HARISHAM NAGARAJAN and her family ordinarily reside(s) at Door No.1, VENKATAPURAM THEMPALLI POST Street, Thempalli Village / Town of Katpadi Taluk of Vellore District of Tamil Nadu.
Digital Signature : 18-06-2018 Time : 2:39:50 PM Name : Jayanthi B Designation : Tahsildar Place : Katpadi Taluk, Vellore District Remarks:
1. The certificate was printed on 18-06-2018 time 3:18:26 PM hrs.
2. For further certificate confirmation and details, you may approach the Tahsildar concerned."
(iv) Aadhar Card copy of the appellant, is extracted hereunder:-
Unique Identification Authority of India GOVERNMENT OF INDIA Enrollment No.1058/30010/81900 To Harishma Nagarajan SS-13/2A N.I.T. Campus DURGAPUR 9 Durghapur (m corp.).
Durgapur R.E. College, Barddhaman West Bengal - 713209 9932930721 Your Aadhaar No. 9917 8859 0014
71. In Minor P.Rajendran vs. State of Madras and others reported in 1968 2 SCR 786 = AIR 1968 SC 1012, the Hon'ble Supreme Court considered a challenge to the rules promulgated for selection of candidates for admission to the First year Integrated M.B.B.S. Course, thereon. Inter alia, Rule 8 provided that the seats reserved in the general pool and seats reserved for the socially and educationally backward classes will be allocated among various districts, on the basis of the ratio of population of each district, to the total population of the State. Further the Rules also prescribed the form of application, and as selection was on district-wise basis, the form had a column to the effect: "Nativity Claimed". The Hon'ble Apex Court observed that from the form that nativity depended on the S.S.L.C. Register i.e. the district from which the candidate passed the S.S.L.C. examination, or on the nativity certificate of parents. The Hon'ble Apex Court, observed that as per the details in the application, for the purpose of nativity, the place where the candidate's parents were born or the place where they possessed immovable property had to be considered. The candidate may choose the district, from which he passed the S.S.L.C. Examination, but he may, in the alternative, choose some other district, on the ground of nativity, and this choice leaves it open to him to choose the district of permanent residence of the father or the mother. Further the form of certificate also showed that where the parents are dead, even the guardian's nativity, can be the basis of the district which a candidate may claim.
72. Adverting to the challenge to the rules, as violative of Article 15(1) of the Constitution of India, at paragraph 9 of the judgment, the Hon'ble Supreme Court in P.Rajendran's case, held as follows:
"9. The next attack is on R. 8, which provides for districtwise distribution of seats according to population of the district. This is attacked first on the ground that it violates Article 15 (1) which lays down that there shall be no discrimination on the basis of place of birth and it is urged that the provision for "nativity claimed" in the form is really a camouflage for discriminating on the ground of place of birth. We have already referred to the provisions relating to nativity certificate. We must say that these provisions are as complicated and confusing as possible and there may be some force in the contention raised that this has been done to get over the prohibition in Article 15 (1) with respect to discrimination on the basis of place of birth. What exactly "nativity" means is not clear from the rules; it may be the place from where the candidate passed his S. S. L. C. Examination; it may be the place where his father was born or his mother was born; it may be the place where his father has property or his mother has property: or it may be the place of permanent residence of the parents or guardian, for the words "permanent residence" appear in the form of nativity certificate. But the dictionary meaning of the word "nativity" is birth and when the Rules provide for nativity certificate they really mean the place of birth. However it appears that the place of birth of the candidate is nowhere mentioned in the Rules. Even though there may be some substance in the charge that all this complicated and confusing method has been provided in order to get over the prohibition in Article 15 (1) by a camouflage, we cannot say that there is a clear violation of Article 15 (1) for the district which the candidate may claim does not depend upon the place of his birth. We cannot therefore strike down R. 8 on the ground that it discriminates on the basis of place of birth the candidate concerned."
73. Having regard to the dictionary meaning of the word 'Nativity', the Hon'ble Apex Court, held that nativity means place of birth and when the rules provide for nativity certificate, they really mean the place of birth. Clause 3(f) of the prospectus, speaks that candidates who are native of Tamil Nadu, but studied from Standard VI to Standard XII outside Tamil Nadu either partly or completely in one or more States should produce the true copies of their parent's certificates, such as Birth Certificate/SSLC/10th/12th/Degree/Diploma/Professional course and Ration Card/Passport to substantiate their place of birth in Tamil Nadu to establish the relationship between the parent and the candidate along with the Nativity Certificate of the candidate. Otherwise, they would be considered under open category. "Nativity", as claimed in the instant appeals, is some what similar to Rule 8, which was challenged in the Apex Court, in P.Rajendran's case.
74. As per column 4, column No.7 to the instructions for filling up of the application, candidates are instructed to encircle code No.1, if they are native of Tamil Nadu and for others, to encircle, column No.2. Accordingly, the appellants have encircled 1, i.e. Tamil Nadu. Column No.23 of the instructions to candidates for filling up the application form to be submitted to the Selection Committee, for admission to MBBS/BDS course, against Tamil Nadu quota, indicates as to how the candidates have to fill up the civic status of their native place. Nativity has been explained as village, town, city where the candidate hails from.
75. The phrase verb, "Hail from", as per Cambridge Dictionary means, "to come from or to have been born in a particular place. As per Collins Dictionary, the phrase verb "hail from" means, 'one's birth place or established residence". Longman, defines, "hail from" as, "to have been born in a particular place". Oxford Dictionary defines, "hail from", as "to come or have been born in a particular place. Thus the plain dictionary meaning of the words "hail from", means the place of birth and accordingly, instructions have been given to the candidates to fill up the district Code. All the appellants have filled up the District Code, indicating the respective District Codes, stating that they hail from a place, within Tamil Nadu.
76. As per clause 3(a) candidates who seek admission as against the seats earmarked for Tamil Nadu quota, should be native of Tamil Nadu. As per clause 3(b), candidates belonging to other States cannot claim native of Tamil Nadu. As per clause 3(c) candidates who have applied for NEET-UG 2018, as a person from other States cannot claim as a native of Tamil Nadu. Thus a conjoint reading of all the above clauses makes it clear that for a candidate to claim a seat, in MBBS/BDS courses, as against the seats earmarked for Tamil Nadu State quota, he/she must be native of Tamil Nadu. No dual nativity is permissible. There is a specific bar for other State candidates to claim nativity of Tamil Nadu.
77. As per the Nativity Certificate, dated 28.05.2018, issued to M.Goutham, (appellant in W.A.No.1495 of 2018) by the Zonal Deputy Tahsildar, Dharapuram Taluk, Tiruppur District, Tamilnadu, M.Goutham (appellant in W.A. No.1495 of 2018) is native of Velamboondi Village / Town of Dharapuram Taluk of Tiruppur District, Tamil Nadu State. Similarly, Nativity Certificate dated 25.09.2017, issued to R.Gayathri (appellant in W.A.No.1508 of 2018), by the Zonal Deputy Tahsildar, Gudiyatham Taluk, Vellore District, shows that R.Gayathri (appellant in W.A.No.1508 of 2018) is native of Nagai Village, Gudiyatham Taluk of Vellore District, Tamil Nadu State. Nativity Certificate, dated 14.06.2018, issued by the Zonal Deputy Tahsildar, Katpadi Taluk, Vellore District, states that Harishma Nagarajan (appellant in W.A.No.1513 of 2018) is native of Thempalli Village, Katpadi Taluk of Vellore District, Tamil Nadu State.
78. From the prospectus, issued by the Minstry of Health and Family Welfare, Government of Tamil Nadu/2nd respondent, it is clear that seats earmarked for Tamil Nadu State quota, are meant for those, who are native of Tamil Nadu and not others. Dual nativity cannot be claimed. Thus, the Selection Committee, by explaining, what is nativity, by referring to the civic status of nativity, in the instructions to the candidate, has explained what 'Nativity' means, that is the place of birth and not residence. The appellants have furnished Nativity Certificates and therefore, there cannot any doubt over their nativity, ie., Tamil Nadu.
79. While considering the eligibility of candidates, who are native of Tamil Nadu and studied Standard VI to Standard XII in Schools of Tamil Nadu, in the prospectus, the Government have stated that such candidates need not submit their nativity certificate. For the purpose of claiming a seat, earmarked against Tamil Nadu quota, the candidates have to submit proof of document. But for those, who have studied Standard VI to XII in Tamil Nadu, there is no need to produce 'Nativity Certificate'.
80. As per Clause 3(f) of the Prospectus, candidates, who are native of Tamil Nadu, but studied from VI to XII outside Tamilnadu, either partly or completely in one or more States should produce the true copies of their parent's certificates such as Birth Certificate / SSLC / 10th / 12th / Degree / Diploma / Professional course and Ration Card / Passport, to substantiate their place of birth, in Tamil Nadu and to establish the relationship between the parent and the candidate, along with the Nativity Certificate of the candidate. Otherwise, they will be considered under open category.
81. Intention of the Government in directing the candidates, who are native of Tamil Nadu, but studied from VI to XII outside Tamilnadu, either partly or completely, in one or more states, to produce the above said documents, is to ascertain the place of birth of their parents and to establish the relationship between the parent and the candidate. In such circumstances, the candidates have to produce their Nativity Certificate also. Thus, in the opening sentence of clause 3(f) of the prospectus, the Government have recognised such candidates as native of Tamil Nadu, but submission of the abovesaid documents is a requirement, for the purpose stated supra. Entries in SSLC / 10th / 12th / Degree / Diploma / Professional course, will not contain the details of place of birth of the parents. They only contain the names of the candidate, parents, marks secured, date of birth, registration number, the educational institution, in which, they studied, the respective Board/University.
82. Ration Card would indicate the place of residence and not place of birth. Passport may indicate place of birth. As per Clause 3(f) of the prospectus, it is suffice for the candidates, who are native of Tamil Nadu, but studied from VI to XII outside Tamilnadu, either partly or completely in one or more States, to produce true copies of their parent's certificates, such as Birth Certificate / SSLC / 10th / 12th / Degree / Diploma / Professional course and Ration Card / Passport.
83. Bare reading of clause 3(f) of the prospectus, makes it clear that such candidates are not required to produce copies of all the documents. They can produce any of the certificates, including the birth certificate or passport, indicating the place of birth of the parents. Other certificates, referred to in Clause 3(f) of the prospectus, will not contain any entry, in support of place of birth. Educational certificates may indicate only the place of study of the parents.
84. A candidate is entitled to seek for admission, against the seats earmarked under Tamil Nadu State quota, on own merit and nativity, following rule of reservation, and not on the basis of the nativity of their parents.
85. On the facts and circumstances of the instant appeals, we could deduce that Government of Tamil Nadu, appeared to have included Clause 3(f) in the prospectus, to substantiate the birth place of the parents and to establish the relationship. From the prospectus, it is suffice to submit any document, to establish the relationship and such certificate is not a proof of nativity of the parents.
86. Nativity Certificate, submitted by the appellants, would disclose nativity of the candidates and similarly, community certificate would disclose the community of the candidate. Both the certificates would establish the relationship between the parent and the candidate. So also, the certificates issued by the Boards/Universities, in SSLC / 10th / 12th / Degree / Diploma / Professional course, would disclose the names of the candidates and their respective parents. Scrutiny of nativity certificate, community certificate, ration card, educational certificate, would prove the relationship of the candidate, with the respective parent.
87. Though clause 3(f) is not challenged, one cannot expect that every parent to have a passport, and consequently to provide a true copy of the same to prove his place of birth. Similarly, many not have birth extracts. Even taking it for granted that births of the parents ought to have been registered, one cannot dispute the fact that those days, names of the children were not entered in births extracts. Invariably, names of the children would be absent. Children are not christened on the day of birth. But it is customary that they are christened on any auspicious day. Though 3(f) of the prospectus, require the candidates who are native of Tamil Nadu, to produce copies of the birth extracts of the parents and passport, to establish the place of birth of their parents, is not challenged, having regard to the above reasons, we are of the view that each and every parent, cannot be expected to have a passport, or birth extract, to prove their place of birth. Even going by clause 3(f), suffice to produce any one of the documents, mentioned in Clause 3(f) of the prospectus of the candidates and not all.
88. Nativity of a candidate, applying for a seat, under Tamil Nadu quota, cannot be decided, on the basis of place of his/her study of the candidate. By virtue of avocation/employment of the parent, a candidate may have to pursue his/her education, in some other State, where he/she was not born. That could be a factor, for deciding the constant place of residence, which NEET (CBSE) appears to have adopted, by citing that state, in which the candidate has a residence, as constant State, and the place for communication, as communication State. Government of Tamil Nadu have issued the prospectus, stipulating a condition that candidates, who are natives of Tamil Nadu, can apply against the seats meant for State quota and therefore, there is no question of considering, constant residence, as a factor, for disqualifying a candidate, from applying against the Tamil Nadu State quota.
89. Scrutiny of Clause 3, in entirety does not indicate that place of residence, either of the candidate or his father, as a disqualifying factor, for claiming admission, against the seats for Tamil Nadu State quota, whereas, the requirement is nativity of the candidates. From the submission of the learned Additional Advocate General, appearing for the State and the Selection Committee, it is manifest that the respondents seemed to have considered the place of residence and not nativity of the candidates.
90. State has not framed its policy on residence, but nativity. Scrutiny of Clause 3(f) of the prospectus, makes it clear that the classification is based on nativity of the candidates and not place of residence of the parents or the candidates, as the case may be.
91. From the submission of Mr.C.Manishankar, learned Additional Advocate General for the State, it could be deduced that what is put against the candidates/appellants, the place of residence of the candidates, on account of their parents, employed in other States, and consequently, their children constrained to pursue their education in other states. When Clause 3(a) to 3(d) speak about nativity of the candidates, to apply for admission against the seats, earmarked for Tamilnadu State quota, it would not be appropriate, for the state to disqualify the candidates from seeking admission, as against the seats, earmarked for Tamil Nadu quota, on the basis of residence of the candidates or the parents, as the case may be.
92. Employment of the parents in states, other than Tamilnadu, resulting in continuation of study of the candidates, in other states and consequently, submission of the applications to NEET (CBSE) and referring the candidates' place of residence as constant State, would not empower the State Government, to contend that such candidates are not native of Tamilnadu, nor the candidates be said that they have lost their nativity, contrary to the certificates issued by the Competent Revenue Authorities, empowered to issue Nativity Certificates. Indisputedly in all the writ appeals, competent authorities, have issued Nativity Certificates, stating that the appellants, are native of Tamilnadu. Respondents have accepted the nativity certificates and the scrutinising officer has also recorded that proof of native produced. At this Juncture, it is relevant to extract that the Scrutinizing Officer, has recorded as hereunder:-
Application Form (in respect of M.Goutham, appellant in W.A.No.1495 of 2018):
Application No: 113151 A.R.No.13612 ADMISSION TO MBBS/BDS COURSES 2018-2019 SESSION COMMON APPLICATION FORM FOR GOVERNMENT MEDICAL/ DENTAL COLLEGES AND GOVERNMENT SEATS IN SELF-FINANCING MEDICAL/ DENTAL COLLEGES, SELECTION COMMITTEE, DIRECTORATE OF MEDICAL EDUCATION, KILPAUK, CHENNAI 10.
Column No.7: Nativity (Encircle a Code) 1.Tamil Nadu ; 2.Others Application Form (in respect of R.Gayathri, appellant in W.A.No.1508 of 2018):
A.R.No.3322 ADMISSION TO MBBS/BDS COURSES 2018-2019 SESSION COMMON APPLICATION FORM FOR GOVERNMENT MEDICAL/ DENTAL COLLEGES AND GOVERNMENT SEATS IN SELF-FINANCING MEDICAL/ DENTAL COLLEGES, SELECTION COMMITTEE, DIRECTORATE OF MEDICAL EDUCATION, KILPAUK, CHENNAI 10.
Column No.7: Nativity (Encircle a Code) 1.Tamil Nadu ; 2.Others Application Form (in respect of Harishma Nagarajan, appellant in W.A.No.1513 of 2018):
Application No: 121958 A.R.No.23676 ADMISSION TO MBBS/BDS COURSES 2018-2019 SESSION COMMON APPLICATION FORM FOR GOVERNMENT MEDICAL/ DENTAL COLLEGES AND GOVERNMENT SEATS IN SELF-FINANCING MEDICAL/ DENTAL COLLEGES, SELECTION COMMITTEE, DIRECTORATE OF MEDICAL EDUCATION, KILPAUK, CHENNAI 10.
Column No.7: Nativity (Encircle a Code) 1.Tamil Nadu ; 2.Others
93. Assurance of the State Government and Selection Committee is that nativity of the candidate, as the fundamental qualification, to apply for admission, against the seats meant for Tamil Nadu State quota and not residence, is clear from Clause 3 of the prospectus to the candidates. In this context, we deem it fit to quote, Lord Denning in Lyle-Mellor v. A. Lewis and Co. (Westminster) Ltd., reported in (1956) 1 All ER 247, "I am clearly of opinion that his assurance was binding, no matter whether it is regarded as a representation of law or of fact or a mixture of both, and no matter whether it concerns the present or the future. It may not be such as to give rise to an estoppel at common law, strictly so called, for that was confined to representations of existing fact; but we have got far beyond the old common law estoppel now. We have reached a new estoppel which affects legal relations"
94. Doctrine of estoppel, as embodied in Section 114 and 115 of the Evidence Act, 1872, is as follows:-
"114. Court may presume existence of certain acts:
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
115. Estoppel When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
95. By application law of evidence, we are of the view that when the appellants have produced Nativity Certificates, Government or the Selection Committee, as the case may be, cannot disqualify the candidates, on the basis of residence. State Government or the Selection Committee, as the case may be, is not right in altering the conditions for eligibility, for claiming a seat, under the Tamil Nadu State quota, from nativity, to that of residence, and that is not permissible, in view of the decision of the Government, discernible from Clause 3 of the prospectus.
96. On the facts and circumstances of the instant appeals, question to be decided is, whether the parents of the candidates, who have taken up employment or transferred to other states, due to service conditions of transfer, and constrained to shift their residence to other states, and consequently, resulting in their children to study in other States, can take away the rights of the children, who are native of Tamil Nadu to claim seats earmarked, against the Tamil Nadu State quota and our answer is "No".
97. At the risk of repetition, we state that the competent revenue authorities have already issued Nativity Certificates to the candidates/appellants, stating that they are native of Tamil Nadu. On the facts and circumstances of the case, we are of the view that residence, however prolonged, due to employment of the parents, in other states, would not alter the nativity of the candidates, but there could be a contention of constant residence, which is not the decisive factor, to disqualify a candidate, for claiming seats, against Tamil Nadu State quota, ie., native of Tamil Nadu.
98. Children, who are native of Tamil Nadu, constrained to take up the place of residence of the parents, due to employment or for any other acceptable reason, cannot be denied of their legitimate claim, for admission to MBBS/BDS courses, as against the seats earmarked for Tamil Nadu quota. In the case on hand, Government of Tamil Nadu and Selection Committee have chosen to allot seats under All India quota and State quota. All India quota to those candidates, whose are not native of Tamil Nadu and State quota to exclusively, who are native of Tamil Nadu. At the risk of repetition, clauses 3(a) to (f) are reproduced:-
"3. Nativity:-
(a) Candidates should be Native of Tamilnadu.
(b) Candidates belonging to other States cannot claim nativity of Tamil Nadu
(c) Candidates who have applied for NEET UG-2018 as a person from other State cannot claim as a Native of Tamil Nadu.
(d) Candidates belonging to Native of Tamil Nadu who have studied Standard VI to Standard XII in schools of Tamil Nadu need not submit their "Nativity Certificate".
(e) Permanent Residence Certificate in lieu of Nativity Certificate will not be accepted.
(f) Candidates who are Native of Tamilnadu, but studied from VI to XII outside Tamilnadu, either partly or completely in one or more States should produce the true copies of their parent's certificates such as Birth Certificate / SSLC / 10th / 12th / Degree / Diploma / Professional course and Ration Card / Passport to substantiate their place of birth in Tamil Nadu to establish the relationship between the parent and the candidate along with the Nativity Certificate of the candidate. Otherwise, they will be considered under open category."
99. Policy of the State Government to provide seats to the native candidates, following merit-cum-rule of reservation, to natives of Tamil Nadu is evident from the prospectus issued to the candidates, against the seats earmarked for Tamil Nadu quota. Instructions are clear, as to the civic status of nativity. When natives of Tamil Nadu alone, can apply for the earmarked seats under Tamil Nadu quota, Clause 3(f) of the Prospectus, which state that such of those candidates, who have not submitted the documents, mentioned in Clause 3(f) will be treated as candidates as open category, is fallacious.
100. When the candidates are not natives of Tamil Nadu, they cannot claim any right for admission, against any seat, earmarked under Tamil Nadu State quota, and they cannot claim admission thereof, under any category, on the basis of communal reservation. At best, they can claim admission, only against the seat earmarked against All India quota and not under any category, based on, communal reservation. Stipulation in Clause 3(f) of the prospectus, though not challenged, in our considered view that such candidates, natives of Tamil Nadu, not submitted the documents, required in Clause 3(f) of the Prospectus, would be considered as open category, is diametrically opposed to the very policy of the Government, in allowing such candidates to stake any claim for admission of such candidates, against the seats earmarked for Tamil Nadu State quota.
101. Wisdom of the policy of the State Government is based on nativity of the candidate and not place of residence of the parents or the candidates, as the case may be. Policy has been designed to disentitle candidates of other States to claim admission earmarked against the seats under Tamil Nadu State quota, not on residence, but purely based on nativity of the candidate. At the risk of repetition, Clauses 3(a) to 3(d) are reproduced,
(a) Candidates should be Native of Tamilnadu.
(b) Candidates belonging to other States cannot claim nativity of Tamil Nadu
(c) Candidates who have applied for NEET UG-2018 as a person from other State cannot claim as a Native of Tamil Nadu.
(d) Candidates belonging to Native of Tamil Nadu who have studied Standard VI to Standard XII in schools of Tamil Nadu need not submit their "Nativity Certificate".
102. Prospectus do not prescribe place of residence, as the fundamental criteria, for claiming admission, as against the seats earmarked for Tamil Nadu State quota. But the prospectus is clear that it is nativity of the candidate, Tamil Nadu as the required qualification. Having regard to the policy of the Government, in the matter of filling up seats earmarked as State quota, submission of the respondents, on the basis of the residence, cannot be countenanced. When nativity of the candidates, is the pre-requisite to apply, as against the seats meant for Tamil Nadu State quota, we are of the view that the Writ Court has grossly erred in considering the place of residence of the candidates, or that of their parents, which is not the intention of the State Government.
103. When the State Policy is on nativity, and not place of residence, from the material on record, arguments have been advanced on the basis of the residence, and not nativity. Residence is not equivalent to nativity. A person may reside in one State, but he is not native of that State. Residence and nativity are not convertible terms.
104. Selection Committee has misdirected itself from considering the place of communication, as nativity of M.Goutham (appellant in W.A.No.1495 of 2018). By taking into consideration, the certificate issued by the Village Administrative Officer, Kottayam, as Nativity, place of residence, has erroneously disqualified the candidature of M.Goutham (appellant in W.A.No.1495 of 2018) and as rightly pointed out, it is against the spirit and object of the State Government to ensure that the candidates, who are native of Tamil Nadu alone, are entitled to seek for admission, against the seats earmarked as Tamil Nadu State quota.
105. As rightly pointed out by Mr.Om Prakash, learned Senior Counsel, writ Court has misinterpreted the certificate issued by the Village Administrative Officer, Kottayam, State of Kerala, as one affirming Nativity of the M.Goutham (appellant in W.A.No.1495 of 2018).
106. Writ Court has failed to consider that in the certificate issued by the Village Administrative Officer, Kottayam, the said authority has categorically stated that he has not issued any nativity certificate, but only issued a certificate mentioning the place of residence.
107. In the case of M.Goutham (appellant in W.A.No.1495 of 2018), on scrutiny, the Selection Committee has not rejected his candidature, but only during the course of the hearing of W.P.No.1495 of 2018, arguments have been advanced, based on the certificate of the Village Administrative Officer, Kottayam, State of Kerala. Writ Court has failed to consider that there are no materials to indicate that the appellants have applied for a seat earmarked for any other state quota, except Tamil Nadu, claiming themselves as native of Tamil Nadu.
108. Adverting to the rival submissions in W.A.No.1495 of 2018, in the case of M.Goutham, we have no hesitation to reach a conclusion that the decision of the writ Court, based on a certificate, dated 14.05.2018, issued by the Village Administrative Officer, Kottayam, State of Kerala, for disqualifying the candidature of M.Goutham (appellant in W.A.No.1495 of 2018), is erroneous.
109. In the case of R.Gayathri (appellant in W.A.No.1508 of 2018), the respondents have not disputed the community certificate, dated 17.07.2018, issued by the Zonal Deputy Tahsildar, Katpadi Taluk, Vellore District, which states that the appellant belongs to Backward Class Community. The said community certificate has been taken note of, by the Selection Committee.
110. Likewise, Harishma Nagarajan (appellant in W.A.No.1513 of 2018), belongs to Hindu Scheduled Caste Arundathiyar Community. Both the appellants have applied for admission, as against the seats earmarked for Tamil Nadu quota, on the basis of the reservation policy of the State Government. They cannot be treated as candidates belonging to open category. Merely because, the appellants did not produce certain documents, contemplated under Clause 3(f) of the prospectus, community status certified by the competent revenue authorities, cannot be altered.
111. As regards, Harishma Nagarajan (appellant in W.A.No.1513 of 2018), we agree with the contention of the learned senior counsel that reservation policy is implemented in the State of Tamil Nadu, enabling a candidate, belonging to Hindu Scheduled Caste Arunthathiyar community, to claim a seat, which is not the case of West Bengal. Reservation Policy entitles Harishma Nagarajan (appellant in W.A.No.1513 of 2018), to claim a seat, against the seats earmarked for Scheduled Caste (Arunthathiyar) and therefore, she cannot be treated as open category. So also, R.Gayathri (appellant in W.A.No.1508 of 2018), belonging to Gavara Hindu Naidu community, cannot be treated as open category.
112. If the appellants are to be considered as non-natives of Tamil Nadu, then as per Clause 3(f) of the prospectus, they cannot seek for admission, as against the seat earmarked for Tamil Nadu quota and in such circumstances, they can only be considered against the seats earmarked for All India quota. Probably, based on Clause 3(f) of the prospectus, writ Court has directed to consider them, as open category candidates. Directions of the writ Court to treat them, as open category candidates, is set aside. Based on the community certificates, cases of Harishma Nagarajan (appellant in W.A.No.1513 of 2018) and R.Gayathri (appellant in W.A.No.1508 of 2018), have to be considered, in the order of inter-se merit, among the candidates, belonging to the abovesaid communities.
113. In respect of W.A.No.1495 of 2018, decision of the writ court, that, "even though the appellant has produced Ration Card (Smart Card) of the year 2017, which is prior to the date of the certificate dated 14.05.2018, the case of the appellant cannot be considered as candidature from the native of Tamil Nadu; that the nativity certificate, at no stretch of imagination, can be based on the birth place; birth place is where a person who lives along with brothers and sisters, but the place of the person where the education has been done and lived alone, can be taken into account for the purpose of nativity and the respondents have also produced Citizens Charter 2015, wherein it is clearly stated that a student who resides more than 5 years, has to be considered as domicile of that place; and that even though the candidate was born in Tamil Nadu, his entire schooling was at Kerala and the nativity certificate will have to be looked from that angle from where the education has been imparted", is erroneous.
114. Further conclusion of the writ court at paragraph 9 of the order dated 06.07.2018 made in W.P.No.16389 of 2018, that, "the nativity certificate dated 14.05.2018 issued by the Village Officer, Kottayam, would make it clear that the appellant was residing only in Kerala and that the said certificate has been obtained only for the purpose of medical counselling for the year 2018; that as the appellant and his parents are residing in Kerala and the student has studied in the State of Kerala and not in the State of Tamil Nadu, the appellant can be treated as a candidate for the purpose of NEET outside the State of Tamil Nadu; that in the case, in the so-called Certificate issued by the Village Officer, the wordings, "for the last 20 years, he is temporarily residing at Krishna Kripa, Puthanangady, Kottayam", would mean that the candidate/parent was permanently residing there, as the word "temporarily" cannot be for 20 years and the said word what has been incorporated in the said certificate for the purpose of NEET and the genuineness of the certificate itself is doubtful, is the contention of the learned counsels for the respondents, which cannot be brushed aside by this Court", is also erroneous and contrary to the judgment of the Hon'ble Supreme Court in P.Rajendran's case.
115. Decision of the writ court that, "the intention is to provide seats to the students who studied in the State of Tamil Nadu and the nativity certificate would mean not the place of birth, but the place of residence for several years of the candidate, if studied in the State of Tamil Nadu", is also erroneous. Decision of the writ court that, "the birth certificate can no stretch of imagination, can be construed as Nativity Certificate", is erroneous and contrary to the judgment of the Hon'ble Apex Court in P.Rajendran's case.
116. In the case of R.Gayathri, appellant in W.A.No.1508 of 2018, she has produced Ration Card, Aadhar Card, Birth Certificate and School Certificate, Nativity Certificate. Writ Court has permitted the appellant for production of documents not enclosed along with the application, but directed the respondents therein, to consider her candidature against open category, as per the prospectus, which in the earlier paragraphs of this common judgment, we have observed that it is not permissible, because the claim can be only against the seats, meant for All India quota, and not against Tamil Nadu State quota, to be filled up, following communal reservation.
117. Though the respondents in W.P.No.16447 of 2018, before the Writ Court have submitted that non production of documents required under Clause 3(f) of the prospectus would entail, rejection of the application forms and if permitted, would open Pandora's box, the respondents have not chosen to challenge the said direction made in W.P.No.16447 of 2018, dated 04.07.2018, regarding production of documents at the time of counselling.
118. Writ Court in respect of R.Gayathri (appellant in W.A.No.1508 of 2018), has categorically held that both the parents and the appellant are natives of Tamil Nadu. For brevity, Paragraph 9 of the order made in W.P.No.16447 of 2018, dated 04.07.2018, is extracted hereunder:
9. In the case on hand, the candidate has studied till Class VI in Tamil Nadu. On a perusal of the File produced by the Respondent/Selection Committee, it is seen that the candidate has not produced true copies of the documents required to be produced as per clause 3(f) of the Prospectus. However, she has produced her Nativity Certificate. While so, she has furnished a copy of the Ration Card, Aadhar Card of her Father, Degree Certificate and Passport of her mother, in the typed set of papers to the above Writ Petition. On going through the same, it is clear that the candidate as also her parents, are native of Tamil Nadu.
119. In Paragraph 10 of the impugned order in W.P.No.16447of 2018, dated 04.07.2018, the Writ Court has also accepted the decision made in K.Kanimozhi Vs. The Director of Medical Education (2011 (2) CWC 394), and permitted R.Gayathri (appellant in W.A.No.1508 of 2018) to produce the documents, at the time of counselling, but directed to consider her case against open category. When the said portion of the order made in W.P.No.16447 of 2018, in the case of R.Gayathiri, permitting her to produce the documents, required under Clause 3(f) of the prospectus to the candidates, is not challenged, it is not open to advance arguments, contrary to the same.
120. In the case of Harishma Nagarajan (Appellate in W.A.No.1513 of 2018), finding of the writ court, at paragraph 6 of the order made in W.M.P.No.19581 of 2018 in W.P.No.16425 of 2018, dated 06.07.2018, that the appellant has not enclosed any of the documents required to be furnished under clause 3(f) of the Prospectus for the year 2018-2019; that though the appellant has mentioned in her Application that she is a native of Tamil Nadu and that no document was furnished by her in support of her nativity, along with the Application and that the appellant has furnished only a copy of the first page of her Aadhar Card and the second page containing her West Bengal address and that there was no need for the appellant to furnish a copy of her Aadhar Card as an additional document to prove nativity, is not correct, inasmuch as the appellant in W.A.No.1513 of 2018, has produced a nativity certificate.
121. Harishma Nagarajan (appellant in W.A.No.1513 of 2018), has produced the Nativity Certificate, dated 14.06.2018, issued by the Zonal Deputy Tahsildar, Katpadi Taluk, Vellore District, certifiying that the appellant is a native of Thempalli Village/Town of Katpadi Taluk of Vellore District, Tamil Nadu State.
122. Furnishing of Aadhar Card is only to produce is only to prove the place of residence. At paragraph 7 of the order made in W.M.P.No.19581 of 2018 in W.P.No.16425 of 2018, dated 06.07.2018, applicable to the case of Harishma Nagarajan (appellant in W.A.No.1513 of 2018), writ court has observed thus:
7. Whether the order passed by this Court in the case of K.Kanimozhi cited supra, is applicable to the present case or not, can be decided only after the counter affidavit is filed by the Respondent. There is no doubt that a person will not lose his permanent residence in the State merely on account of his absence from the State owing to his employment elsewhere in Government Service or in any occupation, trade, business or profession.
123. While the Writ Court has taken the view that there is no doubt that a person will not lose his permanent residence, in the State, merely on account of his absence from the State, owing to his employment, elsewhere in Government service or occupants' trade or business, then the candidature of the appellant ought not to have been rejected on the basis of residence, when the policy of the Government is to allot seats, for candidates who are natives of Tamil Nadu.
124. In the case of M.Goutham (appellant in W.A.No.1495 of 2018), writ Court in principle has accepted the decision in Kanimozhi's case, whereas in the case of Harishma Nagarajan (appellant in W.A.No.1513 of 2018), the writ Court has observed that whether the order passed by this Court in the case of K.Kanimozhi cited supra, is applicable to the present case or not.
125. From the perusal of all the orders, it could be seen that in the case of M.Goutham (appellant in W.A.No.1495 of 2018), Writ Court, while accepting the decision in Kanimozhi's case, has permitted the candidate to submit the certificates, stipulated in Clause 3(f) and while permitting counselling, has directed the candidature of M.Goutham (appellant in W.A.No.1495 of 2018), to be considered against open category, whereas, in the case of Harishma Nagarajan (appellant in W.A.No.1513 of 2018), having observed that a person will not lose his permanent residence in the State, without passing any similar direction, permitting the appellant to submit the certificates, required under Clause 3(f), has merely passed an interim direction to consider her candidature as open category candidate. There is variation in the orders of the writ Court.
126. Contention of the learned Additional Advocate General is that candidates have to submit the certificates required. But during the course of arguments, this Court was informed that there were five writ appeals, arising out of nativity issue, out of which, one has been disposed of. That apart, there are few writ petitions of the year 2017. Considering the fact that the respondents have not challenged the portion of the order, permitting M.Goutham (appellant in W.A.No.1495 of 2018), to submit the certificates, no adverse order can be passed, in the appeal filed by him.
127. Having regard to the totality of the case, we are of the view that the yardstick applied by the writ Court in the case of M.Goutham (appellant in W.A.No.1495 of 2018), by applying the decision in Kanimozhi's case, can be equally applied to the case of Harishma Nagarajan (appellant in W.A.No.1513 of 2018). Thus, Harishma Nagarajan (appellant in W.A.No.1513 of 2018), is also permitted to produce necessary documents.
128. Offending portion of the orders passed by the writ Court, are set aside. Appellants, be treated as native of Tamil Nadu. They shall be permitted to attend the second round of counselling for admission, as against the seats meant for Tamil Nadu State quota, by following the merit cum rule of reservation, applicable to the State of Tamil Nadu.
129. In the result, Writ Appeals are allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.
(S.M.K., J.) (S.P., J.) .08.2018 Index: Yes Internet: Yes asr/kk/dm
130. After the pronouncement of this order, on the basis of the instructions furnished by the Secretary/Additional Director of Medical Education Selection Committee, Mr.T.N.Rajagopalan, learned Government Pleader submitted that the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, have revised the time schedule for completion of the admission process for first year MBBS Course for the academic year 2018-19. Accordingly, revised counselling for admission to MBBS/BDS seats in Tamil Nadu, to be conducted from 11.08.2018 to 13.08.2018, so as to arrive the seat matrix before the date of counselling.
131. Submission is placed on record. Accordingly, the appellants/candidates be informed of the date of counselling.
(S.M.K., J.) (S.P., J.) 09.08.2018 Note to Office: Issue Today asr/kk/dm To
1.The Secretary/Addl. DME Selection Committee Directorate of Medical Education 162, Periyar E.V.R. High Road, Kilpauk Chennai 600 010.
2.The State of Tamil Nadu Rep. by its Secretary Ministry of Health & Family Welfare Fort St. George, Chennai.
S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
asr/kk/dm
3.The Tamil Nadu Dr.M.G.R. Medical University Rep. by its Registrar No.69, Anna Salai, Chennai - 600 032
4.Medical Council of India Rep. by its Secretary Pocket-14, Sector-8, Dwarka Phase-1 New Delhi - 110 077 W.A.Nos.1495, 1508 and 1513 of 2018 and C.M.P.Nos.11803, 11804, 12046 and 12126 of 2018 09.08.2018