Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
30. 09.2013 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.No.18529 & 17346 of 2013 & connected Mps. W.P.No.18529 of 2013 1 SANTHOSH TAMILARASAN E. 2 DHANOUSH KUMAR (MINOR) REP. BY HIS FATHER AND NATURAL GUARDIAN MR. P.VELAYUTHAM3D.MANJUSHA (MINOR) REP. BY HER FATHER AND NATURAL GUARDIAN MR.M.DHINADHAYALAN ...PETITIONERS Vs 1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF HEALTH & FAMILY WELFARE NEW DELHI. 2 JAWAHARLAL INSTITUTE OF POST-GRADUATE MEDICAL EDUCATION AND RESEARCH (JIPMER) DHANVANTARI NAGAR PUDUCHERRY-605006 REPRESENTED BY ITS DIRECTOR. 3 THE DEAN JAWAHARLAL INSTITUTE OF POST-GRADUATE MEDICAL EDUCATION AND RESEARCH (JIPMER) DHANVANTARI NAGAR PUDUCHERRY-605006. 4 THE UNION TERRITORY OF PUDUCHERRY REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF PUDUCHERRY SECRETARIAT BUILDINGS PUDUCHERRY. 5 MONISHA PRIYA E. 6 SRUTHI P.J.
7 MOUNIKA J.S. 8 G.SARAVANA KUMAR9RAGHAVI P. 10 T.KIRTHIKA ...RESPONDENTS W.P.No.17346 of 2013 1 D.MANJUSHA(MINOR) REP. BY HER FATHER AND NATURAL GUARDIAN MR.M. DHINADHAYALAN ..... PETITIONER Vs 1 THE UNION OF INDIA REP. BY THE SECRETARY MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI. 2 JAWAHARLAL INSTITUTE OF POST GRADUATE MEDICAL EDUCATION AND RESEARCH (JIPMER) DHANVANTARI NAGAR PUDUCHERRY-605 006 REP. BY ITS DEAN3THE DEAN JAWAHARLAL INSTITUTE OF POST GRADUATE MEDICAL EDUCATION AND RESEARCH (JIPMER) DHANVANTARI NAGAR PUDUCHERRY-605 006. 4 SWATI GAUTAM5RATNAMA HALDER6SHARMILA.R. 7 GAYATHRI.R. 8 THE DISTRICT COLLECTOR PUDUCHERRY.(R8-IMPL AS PER ORD.DT.27/06/2013 BY KKSJ IN WP17346/2013) ...RESPONDENTS Prayer in W.P.No.18529 of 2013 Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Declaration declaring that the superimposition of the conditions prescribed in para (iv) (a) & (b) of the prospectus issued by the 2nd respondent for the MBBS course July 2013 Session meant for Puducherry Unreserved (P-UR) as a sufficient qualification to qualify to the seats reserved for the Puducherry Scheduled Castes Category (P-SC) as unconstitutional and illegal and set aside the same and consequently may be pleased to direct the respondents 1 to 3 to publish a Fresh/Revised Merit List for the Puducherry Schedule Caste Category (P-SC) by accommodating the petitioners in the said Merit List in accordance with the constitution (Pondicherry) Schedule Castes order 1964. Prayer in W.P.No.17346 of 2013:- Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the Merit List published by the 2nd respondent in Notice bearing No.Edn. MBBS/EE/ Results/2013 dated 6th June 2013 and signed by the 3rd respondent quash the Merit List in so far as the Puducherry - Schedule Caste as illegal and consequently direct the 2nd and 3rd respondents to publish a fresh/Revised Merit List for the Puducherry - Schedule Caste by ranking the petitioner at 14 (fourteen) in the Puducherry - Schedule Caste Merit List as per the marks obtained by her in competitive entrance examination. Mr. Yashod Varadhan : For Petitioners in Senior Counsel W.P.No.18529 of 2013 for Mr.S.P.Vijayaraghavan Mr. B. Shyam : For Petitioner in W.P.No.17346 of 2013 Mr. S.Haja Mohideen Gisthi : For R.1 in W.P.No.18529/2013 CGSC Mr. M. Krishnan : For R.1 in W.P.No.17346/2013 CGSC Mr.M.T.Arunan : For RR. 2 and 3 in both W.Ps. For JIPMER Mr.A. Tamilvanan : For R.3 in W.P.No.18529/2013 Govt. Pleader (Pondy) for R.8 in W.P.No.17346/2013 Mr.S. Sounthar : For R.9 in W.P.No.18529/2013 ------ COMMON ORDER
Introduction: The legality and correctness of the stipulation made by Jawaharlal Institute of Post-Graduate Medical Education and Research (hereinafter referred to as JIPMER) directing the Pondicherry Scheduled Caste candidates to obtain residence certificate from the Government of Pondicherry as an eligibility condition for admission to the MBBS course under the quota reserved for Pondicherry residents made the Scheduled Caste Origin candidates to file these two writ petitions. The facts:
2. The JIPMER issued a prospectus indicating that out of the total number of 141 MBBS seats, 40 seats would be reserved for the residents of Pondicherry. The institution, out of 40 seats reserved for the local candidates, allotted six seats to the Schedule Caste Candidates of Pondicherry Origin.
3. Clause (vi) of the prospectus provides that ".Pondicherry Scheduled Caste". means a candidate satisfying the definitions of categories (ii) as well as (iv-a)/(b). Category (iv) mandates that candidates making applications for Pondicherry reserved seats should produce a nativity certificate indicating that either the candidate or his parents have continuously resided in the Union Territory of Pondicherry for a period of five years immediately preceding the date of application.
4. The grand parents of the petitioners were residents of Pondicherry as on 5 March 1964, the date on which the President issued notification under Article 341 of the Constitution of India relating to Pondicherry. The petitioners are not residing at present in Pondicherry. In view of the condition regarding five years continuous residence at Pondicherry, they would not be in a position to apply against the seats reserved for Pondicherry residents. According to the petitioners, Scheduled Caste Origin alone could be considered as Scheduled Caste of Pondicherry. The Scheduled Caste migrants cannot be treated as Scheduled Caste of Pondicherry notwithstanding their residential status. The petitioners placed reliance on the judgment of the Supreme Court in Marri Chandra v. Dean, S.G.S. Medical College (1990) 3 SCC130in support of their contention that a candidate, recognised as a member of Schedule Caste in his original State on his migration to another State is not entitled to get the benefit of reservation. The petitioners therefore wanted the clause regarding residential status to be quashed and a direction to consider them for admission to first year M.B.B.S. Course against the quota reserved for Pondicherry residents.
5. The Dean, JIPMER filed a detailed counter affidavit indicating that 40 seats are reserved for the local candidates. The basis to determine a local applicant is continuous residence in the Union Territory of Pondicherry for atleast five years immediately preceding the date of application. In case the Pondicherry Scheduled Caste candidates produce the certificate issued by the competent authority in the prescribed format indicating that they are residents of Pondicherry, they would be considered against the quota reserved for Scheduled Caste of Pondicherry. According to the Dean, the petitioners failed to prove the residential status in Pondicherry and that was the reason for treating them as Scheduled Caste General. Submissions:
6. The learned Senior Counsel for the petitioners by placing reliance on the provisions of the Central Educational Institutions (Reservation in Admission) Act, 2006 and the judgment of the Supreme Court in Marri Chandra v. Dean, S.G.S. Medical College (1990) 3 SCC130and the judgment of a Division Bench of this Court in D. Rajasree v. Government of Pondicherry (Judgment dated 7 October 2009 in W.P.No.13254 of 2009) contended that JIPMER was not justified in imposing such an onerous condition on the candidates who are Scheduled Caste Origin. According to the learned Senior Counsel, the petitioners would not get admission in other States as they are Scheduled Castes of Pondicherry. The learned Senior Counsel contended that JIPMER reserved seats for Scheduled Caste of Pondicherry and as such reservation should be confined to the candidates of Pondicherry Scheduled Caste Origin. JIPMER erred in directing the Scheduled Caste origin candidates to produce residence certificates. The learned Senior Counsel contended that the Division Bench of this Court has already made the legal position clear and as such JIPMER was not justified in imposing condition regarding production of residence certificate.
7. The learned Standing Counsel for JIPMER submitted that the seats earmarked for the residents of Pondicherry cannot be treated as reservation. It was only a channel of admission. Since JIPMER is located at Pondicherry, 40 seats were earmarked for the residents of Pondicherry. It was only to give an opportunity to the Scheduled Caste candidates, who are residing at Pondicherry, six seats were earmarked to them. Those seats cannot be treated as reserved seats under Article 15(4) of the Constitution of India. The learned counsel further submitted that this issue has already been decided by this Court on various occasions. Therefore the writ petitions are liable to be dismissed. Discussion:
8. The petitioners are primarily aggrieved by the requirement relating to continuous residence in the Union Territory of Pondcherry for a period of five years as a mandatory condition for claiming admission in JIPMER under the quota earmarked for the Pondicherry Scheduled Caste Candidates.
9. The prospectus issued by JIPMER contains the details regarding total seats and different kinds of reservations. (A) Unreserved (UR) 51 (B) Other Backward Classes (OBC) 27 (C) Scheduled Caste (SC) 15 (D) Scheduled Tribe (ST) 8 Puducherry 40 Seats (A) Unreserved (P-UR) 23 (B) Other Backward Classes (P-OBC) 11 (C) Scheduled Caste (P-SC) 6 (D) No P-ST - Total 141 10. The Central Act 19/2008 (Jawaharlal Institute of Post Graduate Medical Education and Research, Puducherry Act, 2008) declared JIPMER as an institution of National importance. The Act provides for reservation of seats for the Pondicherry Residents. Section 13(m) of JIPMER Act provides that atleast twenty seats out of seventy five seats in undergraduate courses in the institution should be reserved for local applicants. Accordingly JIPMER earmarked 40 seats for local residents. It is clear from the prospectus that out of 40 seats, 6 seats are reserved for Pondicherry Scheduled Caste candidates. This is in addition to the seats reserved for Scheduled Caste candidates under Article 15(4) of the Constitution of India.
11. In order to apply for admission against the seats reserved for Pondicherry Scheduled Caste, candidate must be a resident of Pondicherry. The Residence Certificate issued by the Tahsildar should be produced along with the application to consider under the quota fixed for Pondicherry residents which includes the candidates from Scheduled Caste Community.
12. The core issue is whether JIPMER was correct in imposing a condition regarding local residence to make the Scheduled Caste candidates eligible for admission under the reserved category (Pondicherry quota).
13. It is the contention of the petitioners, that those candidates whose parents were living in Pondicherry as on the date on which the Presidential Notification was issued under Article 341 of the Constitution of India in relation to Pondicherry alone would qualify for claiming the benefits of local reservation by virtue of their position as Scheduled Caste origin. According to the petitioners, while considering the case of Scheduled Caste origin, residential qualification should not be insisted as it would deny them the right conferred by the Presidential Order in relation to Pondicherry.
14. The petitioners proceeded under a wrong notion that reservation of seats made by JIPMER for the local Scheduled Caste candidates was in the nature of a constitutional reservation. The entire case of the petitioners proceeds on that line.
15. There is no dispute that JIPMER is a Central Government Institution located in the Union Territory of Pondicherry. The institution has already reserved 15% seats in favour of Scheduled Caste Candidates. This reservation is not confined to the Scheduled Caste candidates of Pondicherry. While allotting 40 seats to the residents of Pondicherry, JIPMER reserved 15% seats to the Pondicherry Scheduled Castes, who are actually residing in the Union Territory of Pondicherry. This is not a Constitutional reservation. In fact, this reservation is not at all a reservation in its true sense. It was only a concession given by the institution to the local Scheduled Castes. Such a prescription of residential qualification would not go against the constitutional scheme.
16. The distinction between Scheduled Caste Origin and Scheduled Caste Migrant would not be applicable to the institutions administered by the Central Government. When it comes to admission in State Government institutions or employment under the State, Scheduled Caste Origin alone would qualify for reservation. All others, who have migrated after the issuance of Presidential notification would be considered as Scheduled Caste migrants and they are not eligible for the right conferred by the Constitution on the Scheduled Caste of the concerned State.
17. The petitioners have placed heavy reliance on the judgment of the Division Bench in D. Rajasree v. Government of Pondicherry (Judgment dated 7 October 2009 in W.P.No.13254 of 2009). The said judgment was in relation to the admission process initiated by the Centralised Administrative Committee (CENTAC), Pondicherry. The Division Bench observed that the Scheduled Caste Origin candidates are entitled to the benefits of reservation not withstanding their residence elsewhere. The Division Bench explained the legal position in the light of the law declared by the Supreme Court with respect to Article 341 of the Constitution of India. There is no quarrel with respect to the said legal position. Here, the issue is entirely different. The reservation for the Pondichery Residents including Pondicherry Scheduled Caste is only a concession. Such concession on the basis of the location of the Central Government Institution cannot be characterised as a reservation as such.
18. In Marri Chandra v. Dean, S.G.S. Medical College (1990) 3 SCC130the petitioner was born in the State of Andhra Pradesh. He belongs to Gouda Community which is recognised as a Scheduled Tribe. The father of the petitioner, on the basis of his Scheduled Tribe Certificate got an employment in a Government of India undertaking and was posted in Bombay. The petitioner was living with his father in Bombay since his childhood. The petitioner after passing 12th Standard, applied for MBBS seat against ST quota in Seth G.S.Medical College, Maharashtra. However, he was denied admission on the ground that he cannot be treated as a Scheduled Tribe in Mahrashtra, while approving the denial of admission, the Supreme Court observed thus: ".10. It has, however, to be borne in mind that a man does not cease to belong to his caste by migration to a better or more socially free and liberal atmosphere. But if sufficiently long time is spent in socially advanced area then the inhibitions and handicaps suffered by belonging to a socially disadvantageous community do not continue and the natural talent of a man or a woman or a boy or girl gets full scope to flourish. These, however, are problems of social adjustment i. e. how far protection has to be given to a certain segment of socially disadvantaged community and for how long to become equal with others is a matter of delicate social adjustment. These must be so balanced in the mosaic of the countrys integrity that no S. or community should cause detriment or discontentment to other community or part of community or section. Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled in order to become equal with others. But equally those who go to other areas should also ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. In other words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do require necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case, do require protection in the State of Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem. ".
19. The Law laid down in Marri Chandra would apply only to reservation provided to the Scheduled Caste or Scheduled Tribe of a particular State. It would not apply to a case of a concession given by a Central Government Institution to the resident Scheduled Caste Candidates taking into account the location of the institution.
20. The institution being one run by the Central Government should consider the Scheduled Castes of all the States and Union Territories alike. The presence of the institution in a particular State would not give a right to the Scheduled Caste members of that State to claim special reservation. They have to compete along with other Scheduled Caste candidates for the seats reserved for the community. It was only to assure a percentage of seats to those Scheduled Caste candidates, who are actually residing in Pondicherry, that 6 seats were reserved for the Scheduled Caste candidates of Pondicherry. In order to claim admission against 15% seats reserved for Scheduled Caste, there is no need to fulfill the residential requirement.
21. The prospectus makes it clear that 40 seats earmarked for Pondicherry local candidates is meant for local residents which would include the Scheduled Caste candidates. There is no reservation in favour of Scheduled Caste Origin as such.
22. The very same issue came up for consideration before this Court in Puvvala Sujatha v. Union of India & JIPMER, Pondicherry (2000) Writ Law Reporter 496. The learned Judge while rejecting similar contention raised by the Scheduled Caste Origin candidates observed thus: ".9. ............The second respondent being a Central Government institution, they have reserved eight seats for all the Scheduled Caste candidates. However, as a concession, in the place of the location of the institution, five seats are set apart for residents of Pondicherry Scheduled Castes. This is not to be treated as a reservation under Article 16(4). It is only a concession shown and a source of selection for the colleges on the basis of the location. Just like Pondicherry General where 15 seats are located to residents of Pondicherry, similarly, five seats are located to residents of Pondicherry. Those residents have no connection with the Scheduled Caste Presidential Notification. Further, it cannot be, in any way, restricting the right of the Scheduled Castes in the reservation of allotment to the eight seats reserved for Scheduled Castes.
10. ............In my view, the contention of the petitioner that the remaining five seats allotted on the basis of residence of Scheduled Caste should also be based on the Presidential notification order therefore cannot be sustained. In my view, this is a different classification and source of selection and not a reservation under Article 13(4) or 16(4) of the Constitution of India. In the colleges belonging to the Pondicherry Union Territory, they are bound to follow the principle of reservation as enunciated by the Honourable Supreme Court. In this case, the JIPMER is Central Government institution and they have followed a reservation as concession shown for selection of these candidates from the Union Territory.".
23. The decision of this Court in Puvvala Sujatha was reiterated in Minor D.Ram v. Jawharlal Institute of Post Graduate Medical Education and Research (2004) 4 MLJ472 This Court held: ".13. Further, as far as Central Government institutions are concerned, no distinction is made between Scheduled Caste candidates who have the origin in a particular State or Union Territory and Scheduled Caste candidates who have migrated. This clarification is obtained in the Government of India, Department of Telecom Letter No.1-13/92-SCT dated 18/31.8.1992. As per the clarification obtained from the Ministry of Welfare and Ministry of Home Affairs, Department of Personnel and Training, there is no distinction between origin and migration cases as far as Central Government institutions are concerned. They are applicable only to State Government services and State Government educational institutions. Applying this criteria and in view of the fact that the conditions in Clause 3.5.1 of the Prospectus were met, respondents 4 to 12 have been admitted. The percentage of reservation for Scheduled Caste candidates in the respondent Institution is 15% and out of the 75 seats, 20 seats are reserved on residential basis and for the remaining 55, if 15% reservation is applied, it comes to 8.25 and therefore, 8 seats are given under the Open Scheduled Caste category. As regards the 20 seats, 15% reservation will actually come to three seats. On the other hand, five seats are given for Pondicherry Scheduled Castes. Therefore, the quota for Scheduled Castes has not been diminished. Out of that quota, as a concession, the Pondicherry Scheduled Caste candidates, as defined in the Prospectus, have been given five seats. The petitioner has participated in the examination quite aware of the reservation for Pondicherry Scheduled Castes. Having participated in the examinations, he now finds himself out of the running since other students who also applied under the Pondicherry Scheduled Caste category have acquired more marks than him; so, he has laid the challenge. There is no violation of the Constitutional requirement of reservation. ".
24. I am in agreement with the views expressed by P. Shanmugham, J in Puvvala Sujatha and Mrs. Prabha Sridevan, J in Minor D.Ram.
25. The learned Senior Counsel for the petitioners by placing reliance on Section 3 of the Central Educational Institutions (Reservation in Admission) Act, 2006 submitted that out of the total strength, 15% of seats should be reserved for Scheduled Caste in all the Central Government Institutions. The institution in the subject case has followed this requirement by reserving 15% seats to the Scheduled Caste candidates. The Act nowhere provided that 15% reservation should be in favour of Scheduled Caste Origin. There is no indication that 15% reservation for Scheduled Caste should be in relation to that State, where the institution is located.
26. The minor petitioner in W.P.No.17346 of 2013 applied only against the seats earmarked for Scheduled Caste. It was only when he found the chance of getting admission under that category is remote, he made a claim for seats earmarked for the local Scheduled Caste Candidates, who are residing at Pondicherry.
27. The petitioners have proceeded on a wrong premise that the seats earmarked to the local Scheduled Caste Candidates were intended to the Scheduled Caste Origin. There is no merit in the contention taken by the petitioners. Conclusion:
28. Therefore, I hold that the clause relating to residence was rightly incorporated by JIPMER in terms of Section 13(m) of Central Act 19 of 2008 and the same is not liable to be declared as unconstitutional.
29. In the upshot, I dismiss the writ petitions. Consequently the connected Mps are closed. No costs. 30.09.2013 Index: Yes/no Internet: Yes/no Tr/ To 1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF HEALTH & FAMILY WELFARE NEW DELHI. 2 JAWAHARLAL INSTITUTE OF POST-GRADUATE MEDICAL EDUCATION AND RESEARCH (JIPMER) DHANVANTARI NAGAR PUDUCHERRY-605006 REPRESENTED BY ITS DIRECTOR. 3 THE DEAN JAWAHARLAL INSTITUTE OF POST-GRADUATE MEDICAL EDUCATION AND RESEARCH (JIPMER) DHANVANTARI NAGAR PUDUCHERRY-605006. K.K.SASIDHARAN, J.
Tr 4 THE UNION TERRITORY OF PUDUCHERRY REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF PUDUCHERRY SECRETARIAT BUILDINGS PUDUCHERRY. 5 THE DISTRICT COLLECTOR PUDUCHERRY. Pre-delivery order in W.P.Nos.18529 & 17346 of 2013 30.09.2013