Kerala High Court
Asha S vs State Of Kerala on 6 November, 2007
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
TUESDAY, THE 20TH DAY OF NOVEMBER 2012/29TH KARTHIKA 1934
WP(C).No. 208 of 2010 (A)
-------------------------
PETITIONER :
--------------------
ASHA S.,
D/O. M.K. AMMINI, AGED 20 YEARS,
BABY VILLA, AYYAPPAN KAVIL,
PANANGAD P.O., ERNAKULAM.
BY ADV. SRI.C.P.PEETHAMBARAN
RESPONDENT(S):
--------------------------
1. STATE OF KERALA,
REPRESENTED BY SECRETARY
HIGHER EDUCATION (G) DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM.
2. THE COMMISSIONER OF ENTRANCE EXAMINATION,
GOVERNMENT OF KERALA
THIRUVANANTHAPURAM,
THALASSERY.
3. THE DISTRICT DEVELOPMENT OFFICER,
SCHEDULED CASTE DEVELOPMENT DEPARTMENT,
PALAKKAD.
4. P.N.N.M. AYURVEDA MEDICAL COLLEGE,
KERALIA AYURVEDA SAMAJAM HOSPITAL,
SHORNUR, PALAKKAD
REP. BY PRINCIPAL.
BY GOVT. PLEADER SRI. MUHAMMED SHAH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-11-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
WP(C).No. 208 of 2010 (A)
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 : COPY OF THE MARKS AND DATA SHEET OF THE PETITIONER.
EXT.P2 : COPY OF THE ADMISSION CARD DATED 6/11/2007 ISSUED BY THE
COCHIN UNIVERSITY.
EXT.P3 : COPY OF THE ORDER DATED 22/10/2007 ISSUED BY THE GOVERNMENT
OF INDIA.
EXT.P4 : COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 17/11/2007.
EXT.P5 : COPY OF THE APPLICATION ALONG WITH THE FORWARDING LETTER
OF THE 4TH RESPONDENT DATED 21/2/2008.
EXT.P6 COPY OF THE ORDER DATED 17/3/2008 OF THE 3RD RESPONDENT.
EXT.P7 COPY OF THE LETTER DATED 3/9/2008 OF THE 4TH RESPONDENT TO
THE 2ND RESPONDENT.
EXT.P8 COPY OF THE JUDGMENT DATED 15/12/2008 IN WP(C) NO. 36145/2008 OF
THIS HON'BLE COURT.
EXT.P9 COPY OF THE ORDER DATED 5/8/2009 OF THE 1ST RESPONDENT.
EXT.P10 COPY OF THE LETTER DATED 9/7/2009 SUBMITTED BY THE 4TH
RESPONDENT TO THE 3RD RESPONDENT.
EXT.P11 COPY OF THE REPLY DATED 15/12/2009 ISSUED FROM THE OFFICE OF
THE 3RD RESPONDENT.
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
P.S. TO JUDGE
Mn
T.R.RAMACHANDRAN NAIR, J.
- - - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C).No. 208 of 2010
- - - - - - - - - - - - - - - - - - - - - - - - - -
DATED THIS THE 20TH OF NOVEMBER, 2012
JUDGMENT
The petitioner belongs to Dheevara community (O.E.C.), who was admitted by the fourth respondent College for B.A.M.S. Course. She was originally included in the rank list prepared by the second respondent and her rank number was 36277. The matter in issue is regarding the denial of educational concession which the petitioner has sought from the respondents. As per Ext.P6 it was informed that the students have not been admitted after allotment from the rank list prepared by the Commissioner for Entrance Examinations. The petitioner filed an appeal before the Government which was disposed of by Ext.P9, with certain directions. But the third respondent again declined the benefits by Ext.P11 reply, reiterating the stand taken in Ext.P6.
2. Learned counsel for the petitioner submitted that the legal issue is covered in favour of the petitioner by the decision of a Division Bench of this Court in Akhil P. Pushkar v. State of Kerala (ILR 2012 (4) Ker. 99). After elaborately considering the matter in the light of Articles 15(4), 15(5), 16(4) and 46 of the Constitution of India, it was held thus in paragraphs 8 W.P.(C).No.208/2010 -2- and 9:
"8. The fee concession provided by the State Government to SC/ST students is a concession by way of an affirmative action in tune with Articles 15 (4), 15(5), 16(4) and 46 of the Constitution. As held in Avinash Singh Bagri (supra), rendered after noticing Ashoka Kumar Thakur v. Union of India {(2008) 6 SCC 1}, SCs and STs are a separate class by themselves and the creamy layer principle is not applicable to them. The benefits extended to them by way of concessions cannot be denied by making an in-house classification among SCs and STs, based on any principle; be it financial conditions or source of recruitment, etc. This is so because, the object sought to be achieved by Article 46 of the Constitution is to ensure promotion of the educational and economic interests of those weaker sections of the people by providing special care and protection from social injustice and all source of exploitation. It is not essentially a financial push. It is a wholesome preventive mechanism to insulate that section of the people from social injustice and from all forms of exploitation. Such protective cover is the constitutional mandate. It is aimed at providing all necessary support and protection to energize and nurture that section of the people from the status of being a "weaker section" to join the mainstream in totality, the blooming of which, the Nation, "we, the people of India", is yet to experience in its wholesomeness. Therefore, looking from the angle of Articles 14, 15, 16 and 46, 23 do not see any justifiable reason, on the face of the Constitution to authorise the W.P.(C).No.208/2010 -3- classification of SC/ST students, for the reason that they belong to such communities, to extend the benefits declared and made available to them. We, therefore, answer the reference overruling the judgment in W.P.(C) No.27905 of 2008.
9. OEC having been equated to SC/ST for the purpose of benefits, they would also enjoy those concessions at par with the SC/ST candidates.
In the result, these writ petitions are ordered directing that SC/ST and OEC students in the Self Financing Institutions in the State of Kerala shall be extended all benefits as are available to members of SCs, STs and OECs, without reference to whether they were admitted in the merit quota or management quota and also without insisting that they should have been admitted from the list prepared by the Commissioner of Entrance Examinations. Such benefits shall be extended to the writ petitioners in terms of the aforesaid directions."
Going by the same, SC/ST and OEC students in the Self Financing Institutions in the State of Kerala shall be extended all benefits as are available to members of SCs, STs and OECs, without reference to whether they were admitted in the merit quota or management quota and also without insisting that they should have been admitted from the list prepared by the Commissioner of Entrance Examinations.
W.P.(C).No.208/2010 -4-
3. As far as the petitioner is also concerned, she is entitled for the same benefits in the light of the declaration of law made by this Court.
4. In the counter affidavit filed in this case, the contention raised is that "if the allotment was not made by the Commissioner of Entrance Examinations or if allotment was not made following the principles of merit and reservation, no concession can be granted." The said contention cannot be accepted in the light of the declaration of law made by the Division Bench in the above judgment.
5. Therefore, the writ petition is allowed. Exts.P6 and P11 are quashed. There will be a direction to the respondents to grant the claim of the petitioner for educational concession. Appropriate orders will be passed within a period of three months from the date of receipt of a certified copy of this judgment. It is submitted by the learned counsel for the petitioner that the petitioner has remitted various fees to the College. Once concession is granted, the petitioner will be entitled for the refund of the amount for which the concession is found eligible. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) kav/