Mr N Shreyas Vs. The State Of Karnataka - Court Judgment

Excerpt:

.....avail seat for the post graduation course under the linguistic minority category (tulu-mu). the seats for post graduation course under the private seats linguistic minority category are in the institutions viz., (1) a.j institute of medical sciences and research center and (2) srinivas institute of medical sciences and research center as both the institutions are registered under tulu linguistic minority category and provide a certain percentage of reserved seats in the various courses of post graduation. however on going through the karnataka examination authority guidelines of pg-neet-2021, - 6 - wp no.12121 of 2022 it is observed that the eligibility to avail reservation under the linguistic minority (mu-tulu) is as under: “3.2 eligibility for private seats d. linguistic minority (ma, me, mk, mu): i) linguistic minority reservation is applicable to persons belonging to linguistic minority of the karnataka state whose mother tongue is tamil or telugu or kodava or tulu and ii) a candidate who has studied and passed in one or more government or government recognized, educational institutions located in the state of karnataka for a minimum period of ten academic years as on.....

Judgment:

- 1 - R WP No.12121 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE22D DAY OF AUGUST, 2022 PRESENT THE HON'BLE MR. JUSTICE B.VEERAPPA AND THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA WRIT PETITION No.12121 OF2022(EDN-RES) BETWEEN:

1. MR. N. SHREYAS, AGED24YEARS, S/O SHRINIVAS SHETTY, R/AT FLAT NO.1410, MARIAN SOLACE, MALEMAR ROAD, DEREBAIL, MANGALORE - 575 006.

2. SRI SHRINIVAS SHETTY, AGED58YEARS, S/O LATE ANANDA SHETTY, ADDRESS FLAT No.1410, MARIAN SOLACE, MALEMAR ROAD, DEREBAIL, MANGALORE - 575 006. PRESENTLY WORKING AS ASSISTANT LABOUR COMMISSIONER (CENTRAL), OPP. HDMC PARK, BHAVANINAGAR, HUBLI - 580 023. …PETITIONERS (BY SRI P.P. HEGDE, SENIOR COUNSEL A/W SRI ANKIT CHAHARIA, ADVOCATE FOR SRI GANAPATHI BHAT, ADVOCATE) - 2 - WP No.12121 of 2022 AND:

1. THE STATE OF KARNATAKA, DEPARTMENT OF HIGHER EDUCATION, VIDHANA SOUDHA, BENGALURU - 560 001, REPRESENTED BY ITS SECRETARY.

2. THE DIRECTORATE OF MEDICAL EDUCATION, GOVERNMENT OF KARNATAKA, ANANDA RAO CIRCLE, BENGALURU - 560 009, EMAIL. [email protected], 3. KARNATAKA EXAMINATION AUTHORITY, 18TH CROSS SAMPIGE ROAD, MALLESHWARAM WEST, BENGALURU - 560 012. REPRESENTED BY ITS EXECUTIVE DIRECTOR, [email protected] …RESPONDENTS (BY SRI LAXMINARAYAN, AGA FOR R1 AND R2; SRI N.K. RAMESH, ADVOCATE FOR R3) **** THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT MANDAMUS OR DIRECTIONS, DIRECTING THE RESPONDENTS TO CONSIDER THE REPRESENTATION DATED0606/2022 VIDE ANNEXURE-M SUBMITTED BY THE PETITIONER BEFORE FINALIZING THE GOVERNMENT OF KARNATAKA EXAMINATION AUTHORITY BULLETIN/GUIDELINES OF PG-NEET FOR THE YEAR2022ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, B.VEERAPPA J., MADE THE FOLLOWING: - 3 - WP No.12121 of 2022

ORDER

The petitioner No.1, who is the aspirant to P.G. seat and has taken NEET – PG2022Exams and secured All India Rank of 43445 and eligible for participating in the upcoming counselling and the 2nd petitioner, who is the father of the 1st petitioner, are before this Court seeking the following reliefs: a) Issue a Writ Mandamus or directions, directing the respondents to consider the representation dated 06/06/2022 vide Annexure 'M' submitted by the petitioner before finalizing the Government of Karnataka Examination Authority Bulletin/ Guidelines of PG-NEET for the year 2022. b) Issue appropriate writs or directions to the respondents to extend the exemption being granted to the Governments Seats (As per Clause

4) and Private Seats (as per Clause 4.2 A) under the Government of Karnataka Examination Authority Bulletin/Guidelines of PG-NEET-2021 vide Annexure 'D' to the Linguistic Minority (MU-Tulu) under the Eligibility Private Seats (As per Clause 4.2D) in the Karnataka Examination Authority Bulletin/Guidelines of PG-NEET for the year 2022.-. 4 - WP No.12121 of 2022 c) Issue appropriate Writs or orders quashing the condition No.2 in the Government Order No.ED165Mahiti 2018 dated 12/09/2018 issued by Respondent No.1 vide Annexure 'Q', in so far as it pertains to the students whose parents (employed under the services of the Government), have been residing outside State of Karnataka on account of transfer by the Government, during the relevant period of the study of concerned student from 1st Standard to 12th Standard; and consequently. d) Issue appropriate Writs/orders, declaring that the condition No.2 in the Government Order No.ED165Mahiti 2018 dated 12/09/2018 issued by Respondent No.1 vide Annexure 'Q' is not applicable to the children of parents employed under the services of the Government, who have been residing outside State of Karnataka on account of transfer by the Government, during the relevant period of the study of concerned student from 1st Standard to 12th Standard; I. Facts of the case 2. It is the case of the petitioners that petitioner No.1 is the domicile of the State of Karnataka and belongs to Tulu- - 5 - WP No.12121 of 2022 Linguistic Community and has completed MBBS and is completing his internship in the A.J Institute of Medical Sciences and Research Center, Mangalore affiliated to Rajiv Gandhi University of Health Sciences, Bangalore. Petitioner No.1 had availed admission to the MBBS Course in the above said College under the Linguistic Minority Category (Tulu-MU). Petitioner No.1 has taken NEET-PG2022Exams for the purpose of Post Graduation and has secured All India Rank of 43445 and is eligible for participating in the upcoming counseling.

3. It is further case of the petitioners that petitioner No.1 is eligible to avail seat for the Post Graduation Course under the Linguistic Minority Category (Tulu-MU). The seats for Post graduation Course under the Private Seats Linguistic Minority category are in the institutions viz., (1) A.J Institute of Medical Sciences and Research Center and (2) Srinivas Institute of Medical Sciences and Research Center as both the institutions are registered under Tulu Linguistic Minority Category and provide a certain percentage of reserved seats in the various courses of Post Graduation. However on going through the Karnataka Examination Authority Guidelines of PG-NEET-2021, - 6 - WP No.12121 of 2022 it is observed that the eligibility to avail reservation under the Linguistic Minority (MU-Tulu) is as under: “3.2 ELIGIBILITY for Private seats D. Linguistic Minority (MA, ME, MK, MU): i) Linguistic Minority Reservation is applicable to persons belonging to linguistic minority of the Karnataka state whose mother tongue is Tamil or Telugu or Kodava or Tulu and ii) A candidate who has studied and passed in one or more Government or Government recognized, educational institutions located in the State of Karnataka for a minimum period of TEN academic years as on the 31st March 2021, commencing from 1st standard to 12th and must have appeared and passed either SSLC/10th standard or 2nd PUC/12th standard examination from Karnataka State.

4. It is further case of the petitioners that the eligibility for the Government Seats and Private Seats (GMP Category) under Karnataka State Quota in the Karnataka Examination Authority Guidelines of PG-NEET-2021 requires the completion of 10 years of education from the 1st to 12th Standard in the State of Karnataka, but provides for an exemption to various - 7 - WP No.12121 of 2022 persons as per Clause-(e) of 4.1 of Karnataka Examination Authority Guidelines of NEET PG-2021. The exemption granted to the eligibility for the Government Seats under the Karnataka Examination Authority Guidelines of PG-NEET-2021 is provided for eligibility for Private Seats under GMP category, but is not provided under the eligibility for Private Seats for Linguistic Minority (MU-Tulu) and the same is irrational.

5. It is also the case of the petitioners that Petitioner No.2 - Sri. Shrinivas Shetty is the father of Petitioner No.1 and presently working as Assistant Labour Commissioner, Ministry of Labour & Employment, Government of India (Central). As per terms of employment, Petitioner No.2 being a Central Government Employee is transferable anywhere in India. Petitioner No.2 who was working in Bengaluru was transferred to Hyderabad as per Office Order No.12 of 2005 dated 09/05/2005 issued by the Government of India, Ministry of Labour and Employment, Bengaluru. Again, he was transferred from Hyderabad to Bengaluru as per office order No.03 of 2010 dated 31/05/2010 issued by the Government of India, Ministry of Labour and Employment, Bengaluru. Therefore on account of his transfer in employment, Petitioner - 8 - WP No.12121 of 2022 No.1 could not undergo his studies in Karnataka from 3rd Standard to 6th standard and the same was done at Sri. Vidya Secondary School Hyderabad. Petitioner No.1 has done his eight years of education (out of 1st to 12th Standard) in the State of Karnataka i.e I, II, VII to X Grade, 1st and 2nd PUC.

6. It is further case of the petitioners that there is no justification under the PG NEET Guidelines as to why such exemption is not in the Eligibility for Private Seats for Linguistic Minority MU-Tulu. In fact, the candidates who have scored lesser rank than petitioner No.1 would avail the said benefit under the Linguistic Minority-MU and the Petitioner No.1 though who has a better rank would not get the benefit under said Linguistic Minority-MU on account of not having 10 years of education in the State of Karnataka and also on account of absence of exemption in eligibility for Private Seats-Linguistic Minority as provided for the Government seats and Private Seats (GMP). It is also the case of the petitioners that a seat would also remain vacant on account of the non exemption to the Private Seats-Linguistic Minority (MU-Tulu) Category.

7. It is also case of the petitioners that petitioner No.2 on behalf on Petitioner No.1 has made representations on - 9 - WP No.12121 of 2022 08/06/2020, 05/10/2021 and again on 06/06/2022 to the Respondent No.2 and 3 to extend the benefit of exemption/eligibility to Petitioner NO.1 as provided under the Government seats to the Private Seats-Linguistic Minority-MU Tulu. But the said representations have not all been considered by the respondents till today and the same Guidelines were continued without any modification in respect of the eligibility for the Government seats and Private Seats.

8. It is further case of the petitioners that the guidelines of Karnataka Examination Authority PG-NEET for the year 2022 is likely to be issued by the respondents and therefore if the representation dated 06/06/2022 vide Annexure 'M' submitted by the Petitioner No.2 on behalf of Petitioner No.1 is not considered by the respondents for the upcoming counseling for NEET PG-2022, the Petitioner No.1 would be put to untold hardship.

9. Respondent No.3 has issued the Karnataka Examination Authority Guidelines of PG-NEET-2021, in pursuance of the Government Order No.ED165Mahiti 2018 dated 12/09/2018.-. 10 - WP No.12121 of 2022 In the circumstances, the petitioners sought to allow the writ petition and grant the reliefs sought for. II. Statement of objections filed by Respondent Nos.1 & 2 10. The State Government filed statement of objections and contended that if the Petitioner No.1 is claiming seat under the Linguistic Minority Category and if he has to claim the linguistic minority quota, he should have studied 10 years in Karnataka which is a condition precedent. The Petitioner has done his 8 years of Education in State of Karnataka and has not completed 10 years in study in the State of Karnataka and in view of the Government Order No.ED165Mahithi 2018 dated 12.9.2018, the Petitioner No.1 is not entitled to claim Linguistic Minority seat.

11. It is further stated in the objections that the object of the Government Order dated:12.09.2018 is to see that the children/students of the State are given preference in securing seat and study. There is no arbitrariness or discrimination by the Respondent in issuing the said Government Order dated:

12. 09.2018.-. 11 - WP No.12121 of 2022 12. It is further contended in the objections that Medical Education falls under concurrent list and the State has the powers to regulate admissions. The Government Order dated:12.09.2018 requires candidate to study 10 years in the State. It is a policy decision of the Government to facilitate the students of the State to secure and study PG/MBBS. Thus, the policy of the Government cannot be said to be arbitrary.

13. It is further contended in the objections that in exercise of power conferred under the Act/Rules, the respondent has issued the Government Order dated 12.09.2018 and thus the Government Order is just and proper. There is no arbitrariness nor violation of Article 14 of the Constitution. The Hon'ble Supreme Court in TMA Pai Foundation and others Vs. State of Karnataka and others has held that while determining minorities status, State should be taken as a unit. Thus, the Government Order dated:

12. 09.2018 issued by the respondent is in conformity with the Judgment rendered by the Hon'ble Supreme Court. The Students of a particular community residing in other States where they are not in minority shall not be considered to be minority in a particular State and hence their admission would - 12 - WP No.12121 of 2022 be at par with other non minority students of that State. To claim linguistic minority of that State, the Students should have studied ten years in the State where the institution exists. If the Student has not completed his ten years of study in Karnataka, he is not entitled to claim the linguistic minority quota. The policy of the Government is to enable the students of Karnataka to enjoy the benefit of linguistic minority. Admittedly the petitioner has not completed his ten years of study in Karnataka and thus, cannot claim the linguistic minority quota. Therefore, respondents sought to dismiss the writ petition. III. Rejoinder filed by the petitioners to the statement of objections filed by respondent Nos.1 and 2 14. The petitioners filed rejoinder to the statement of objections filed by Respondent Nos.1 & 2 and contended that parents of Petitioner No.1 are native of Karnataka and have completed entire studies in the State of Karnataka and have been residents of Karnataka, and it was only due to transfer, that they had to relocate to Hyderabad for 4 years. Hence, giving the linguistic minority benefit to Petitioner No.1 does not dilute the objective. Respondents claim that it does not - 13 - WP No.12121 of 2022 amount to discrimination, is totally incorrect. It makes discrimination between students of Karnataka belonging to linguistic minority whose parents are employed under the services of the State/Central Government and liable to be transferred outside the State from other students. It also makes discrimination to the children whose parents are Central Government employees and are transferred from one place to other within the State of Karnataka in contrast to the children of those who are transferred outside the State for certain period of time. In such a scenario, despite both the families being native of Karnataka and belonging to Tulu linguistic minority, one would be entitled to avail seat under the same whereas the other is not. The basic idea of providing reservation and its benefit to the genuine deserving student is defeated. The petitioners further contended that the Judgment rendered by the Hon'ble Supreme Court in the matter of TMA PAI Foundation and others Vs. State of Karnataka and others is not applicable to the present facts of the case.

15. It is further contended in the rejoinder that Petitioner No.1 has completed major studies in Karnataka and has been born and residing in Karnataka. Petitioner No.1 is aged 24, and - 14 - WP No.12121 of 2022 has resided for a period of 20 years in State of Karnataka i.e, Eight years from birth to II Standard, Six years from VII Std to XII Std and thereafter Six years of MBBS course which was also done in State of Karnataka from AJ Institute of Medical Science under Tulu Linguistic Minority and is continuing to reside in Karnataka itself. It was only from III Std to VI Std i.e for a period of 4 years, corresponding to the period of transfer of Petitioner no.2 to Hyderabad that he was compelled to study at Hyderabad. In the circumstances, it is the legitimate right of Petitioner no.1 to avail the seat under Tulu Linguistic minority quota which should be independent of his father's transfer. Hence, the Rule is totally unreasonable as far as students who are children of Government servants are concerned and are compelled to stay outside the State of Karnataka and continue to speak the same language which is their mother tongue during their temporary stay outside Karnataka. The Rule offends the Principle of Equality guaranteed under Article 14 of the Constitution of India. Therefore, the petitioners sought to allow the writ petition.

16. We have heard learned counsel for the parties to the lis.-. 15 - WP No.12121 of 2022 IV Arguments advanced by the counsel for the Petitioners.

17. Sri P.P.Hegde, learned senior counsel appearing along with Sri Ankit Chaharia, for Sri Ganapathi Bhat, learned counsel for the petitioners vehemently contended that the eligibility criteria for Government seats as per Clause 4 and private seats as per Clause 4.2(A) and (C) under the Government of Karnataka Examination Authority Guidelines of PG-NEET-2021 is discriminatory to the eligibility criteria for private seats under linguistic minority as per Clause 4.2(D). He would further contend that the reservation is made on the basis of the language, the sole consideration must be the mother tongue of the candidates and not the region/place of residence. Despite the transfer/change in place of residence, the mother tongue continues and in the present case, it continued to be Tulu and the very purpose of providing reservation to Tulu speaking linguistic minority is defeated by placing embargo/restriction regarding residence. He would further contend that compulsory education of ten years in the State of Karnataka, infact defeats the benefit extended to the linguistic minority by restricting the benefit only to the persons educated/residing in Karnataka. Such a restriction also defeats - 16 - WP No.12121 of 2022 the preamble and moto of the Constitution being to achieve unity and integrity of the nation. Such an exclusion clause not only defeats the purpose and denies the benefit to Linguistic Minority-Tulu (MU), but also introduces a self-defeating clause. This classification of linguistic minorities of the Government/Public Servants compared to others is an arbitrary discrimination, which is opposed to principle of equality guaranteed under the Constitution of India.

18. He would further contend that denial of the benefit of reservation of linguistic minority to the children of persons employed with the State/Central on the ground of their continuous non-residence within the State or demanding exclusive residence within the State for a continuous period of ten years would give preferential treatment to those Linguistic Minority who resided only in the State of Karnataka, thereby, is a clear violation of Article 14 of the Constitution of India. He would further contend that Section 4 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 (hereinafter referred to as “the KEI Act, 1984” for the sake of convenience) applies to the case on hand and the same speaks about the regulation of admission to educational - 17 - WP No.12121 of 2022 institutions etc., subject to such rules, or general or special orders, as may be made by the Government in this behalf and any other law for the time being in force. He contended that it includes minority institutions also.

19. It is further contended that Section 14(1) of the KEI Act, 1984 contemplates the power to make rules. The Government may, by notification, make rules for carrying out all or any of the purposes of this Act. Sub-section (2) of Section 14 of the said Act states that every rule made under this Section shall immediately after it is made, be laid before each House of the State Legislature if it is in session and if it is not in session, in the session immediately following for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiration of the session in which it is so laid or the session immediately following both Houses agree in making any modification in the rule or in the annulment of the rule, the rule shall from the date on which the modification or annulment is notified, have effect only in such modified form or shall stand annulled as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously - 18 - WP No.12121 of 2022 done under that rule. In exercise of the powers conferred by sub-section (1) of Section 14 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 (Karnataka Act 37 of 1984), the Government of Karnataka hereby makes the following rules, further to amend the Karnataka Conduct of Entrance Test for Selection and Admission to Postgraduate Medical and Dental Degree and Diploma Courses Rules, 2006. He would further refers Section 2(c) of the said Act to contend that Entrance Test means the Post Graduate Common Entrance Test conducted for the determination of merit of the candidates by the Karnataka Examinations Authority under the supervision of the Committee followed by centralized counseling for the purpose of admission to professional Medical and Dental Courses through a single window procedure. Provided that the State Government consider the ranking in the All India Post Graduate Medical Entrance Examination (AIPGMEE) for drawing up the merit list in lieu of the Entrance Test. In such circumstances the Entrance Test Committee shall only supervise the centralized counseling for the purpose if admission to professional Medical and Dental courses through a single window procedure conducted by the Karnataka Examination Authority. He further refers to the definition under - 19 - WP No.12121 of 2022 Section 2(e) of the Karnataka Conduct of Entrance Test for Selection and Admission to Post-graduate Medical and Dental Degree and Diploma Courses Rules, 2006, states that Government Medical or Dental College means a college imparting education in Medicine or Dental Science in Post- graduate Degree owned and managed by the Government or an autonomous institution of a Society established by the Government.

20. Sri P.P.Hegde, learned senior counsel for the petitioners further refers Section 2(f) which speaks about the Government seats and contemplates that all the seats in Government Colleges (Excluding All India Quota seats) in Post- graduate Degree and Diploma Courses in Medical or Dental Sciences in Government Medical or Dental Colleges, and such number of sets in the private Professional Educational Institutions including deemed Universities as may be notified by the State Government from time to time in accordance with the consensus arrived at between the Private Professional Educational Institutions and the State Government, for being filled up by it in accordance with law. He also refers to the provisions of Section 2(i) of the Karnataka Conduct of Entrance - 20 - WP No.12121 of 2022 Test for Selection and Admission to Postgraduate Medical and Dental Degree and Diploma Courses Rules, 2006 which contemplates “Private Professional Educational Institutions” which means a college or an institute or a deemed University by whatever name called imparting Professional Medical or Dental Courses leading to the award of a Degree, Diploma or a certificate by whatever name called, approved or recognised by the competent statutory body affiliated to an University.

21. He would contend that Section 4 of the said Rules contemplates “Eligibility” which mean that no candidate shall be admitted to a Professional Educational Institution unless the candidate possesses the following qualification or eligibility to appear for the Entrance Test, namely (a) He is a citizen of India who is of Karnataka Origin and has studied MBBS or BDS degree in a Medical or Dental College situated in Karnataka or outside Karnataka, and affiliated to any University established by law in India recognized by Medical Council of India or Dental Council of India and Government of India. He specifically stressed on the explanation stating that “a candidate of Karnataka Origin” means a Candidate found eligible under clause (i) or (ii) below, namely, (i) a candidate who has studied - 21 - WP No.12121 of 2022 and passed in one or more Government or Government recognized educational institutions located in the Stateof Karnataka for a minimum period of TEN academic years as on the last date fixed for submission of application form, commencing form 1st standard to MBBS/BDS and must have appeared and passed either SSLC/10th standard or 2nd PUC/12th standard examination form Karnataka State. In case of the candidate who has taken more than one year to pass a class or standard, the years of academic study is counted as one year only. He also referred to sub-clause (ii) of Rule 4 of the said Rules, which reads thus, the candidate should have studied certificate for having studied both 1st and 2nd Pre-University Examination or 11th and 12th Standard Examination within the State of Karnataka from an Educational Institution run or recognised by the State Government or MBBS/BDS from a Professional Educational Institution located in Karnataka and that either of the parents should have studied in Karnataka for a minimum period of TEN years. Documents to be produced are SSLC or 10th Standard Marks Card; 2nd PUC or 12th standard Marks Card of the Candidate; Qualifying degree certificate; Domicile certificate issued by the Tahsildar in the prescribed proforma; if claiming reservation benefits: - 22 - WP No.12121 of 2022 Caste/Caste Income Certificate issued by the concerned Tahsildar. For SC/ST in Form-D, Category-I in Form E and 2-A, 2-B, 3-A and 3-B in Form F. He further refers to clause (a) of Rule 6 of the said Rules stating that a study certificate for either of the parent having studied for at least Ten years in Karnataka from the Head of the educational institution where he/she had studied. Further, School study certificates should be countersigned by the concerned Block Educational Officer(BEO)/Deputy Director of Public Instructions (DDPI) COMPULSORILY in the pro forma prescribed. He would further contend that clause (6)(b) of Rule 4 of the Rules indicates that the candidate’s study certificate for having studied both 1st and 2nd PUC or 11th and 12th Standard in Karnataka issued by the Head of the Educational Institution: provided that the explanation mentioned above shall not be applicable in the case of (i) son or daughter of serving employee: (a) Belonging to All India Service of Karnataka cadre; who has served or is serving outside the State of Karnataka during the period corresponding t candidate’s study outside the State from 1st Standard to 2nd PUC or 12th Standard examination can be added to make up the ten years study within Karnataka as required under clause (i) above.-. 23 - WP No.12121 of 2022 22. Sri P.P.Hegde, learned senior counsel also referred to the provisions of Section 23 of The Karnataka Professional Educational Institutions (Regulation Of Admission And Determination Of Fee) Act, 2006 is applicable to the facts and circumstances of the present case. He referred to the definition in Section 2 (kk) of the said Act, 2006 “Karnataka students” which means persons who have studied in such educational institutions in the State of Karnataka run of recognised by the Government and for such number of years as may be prescribed. Sub-section (l) of Section 2 of the said Act speaks about “minority” which means and includes religious and linguistic minority as may be notified by the State Government. As contemplated under the Section 2(m) “minority educational institution” means the education institutions recognised or notified as such by the State Government subject to such conditions as may be prescribed. He refers to the provisions of Section 2(q) of the said Act speaks about "Professional Educational Institution" means college or school or an institute by whatever name called imparting professional education or conducting professional educational courses leading to the award of a degree, diploma or a certificate by whatever name - 24 - WP No.12121 of 2022 called, approved or recognized by the competent statutory body and affiliated to an university and includes private universities of the State. Learned senior counsel further referred to sub-section (2) of Section 2 of the said Act which reads thus, the words and expressions used but not defined shall have the same meaning assigned to them as in the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 (Karnataka Act 37 of 1984) and in any other law for the time being in force.

23. Learned senior counsel further contended that Rule 4 of the Karnataka Conduct of Entrance Test for Selection and Admission to Postgraduate Medical and Dental Degree and Diploma Courses Act, 2006 contemplates “Method of admission in unaided professional educational institutions” Association of all unaided professional educational institutions whether minority or non-minority imparting professional education in any one discipline shall make admission through a single common entrance test conducted on all India basis at State level and followed by centralized counseling through a single window in accordance with such procedure as may be specified by the Admission Overseeing Committee under Section 5 or - 25 - WP No.12121 of 2022 admission in such institutions may at the option of the Association of unaided Professional Educational Institutions be done through the State Common Entrance Test Cell. He would further contend that in view of the provisions of Section 4A of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 contemplates the meaning of “method of admission in case of consensual agreement” states thus, notwithstanding anything contained in this Act, in case if the State Government and the association of unaided professional educational institutions whether minority or non-minority agree to enter into a consensual arrangement or agreement with regard to sharing of seats and fixation of fee in respect of such seats in the said unaided professional educational institutions, in such year, the admission to such number of seats as agreed upon by the State Government and the private professional educational institutions, shall be done by the common entrance test committee as the Government seats in accordance with such rules as may be prescribed by the Government regarding selection of candidates for admission to Government seats in Professional Educational institutions and reservation policy of the State including reservation policy of the State including reservation under Article 371J.

The - 26 - WP No.12121 of 2022 remaining seats shall be filled through the Common Entrance Test conducted by the association of private professional educational institutions or association of religious and linguistic minority institutions on the basis of merit followed by centralised counselling, in a fair, transparent and non- exploitative manner as per the consensual agreement subject to such rules as may be prescribed. Subject to the consensual arrangement or agreement the State Government may, by notification, publish the seat matrix to be filled by the State Common Entrance Test committee and the association of private unaided professional educational institutions. He would further contend that Section 4A(D) stipulates that out of the total intake of Post-graduate Medical/Dental seats, in an unaided minority educational institutions, across the pre- clinical, para-clinical and clinical disciplines which shall be by rotation of disciplines every year. He contended that Section 4A(D)(i) contemplates that not less than twenty percent of the seats shall be filled up through Common Entrance Test conducted by State Common Entrance Test Committee and sub-clause (ii) states that not more than fifty five percent of the seats shall be filled up by the merit list of Common Entrance Test conducted by the Association of minority unaided - 27 - WP No.12121 of 2022 Professional Educational Institutions provided that, in case of minority unaided professional educational institutions while filling institutional seats under clause (C), (D) and (F) not less than sixty-six percent of the seats shall be filled by minority students within the State belonging to minority to which the institution belong to the interse merit in the merit list of common entrance test. Provided further that, in case the Government of India or its agency conducts common entrance test to any course of professional education the centralised counselling for allotment of seats shall be conducted by such agency as may be prescribed. Provided also that, not less than thirty perscent of the institutional seats shall be filled by Karnataka Students and if sufficient number of Karnataka students are not available such seats may be filled by others.

24. He further contended that the brochure bulletin 4.2 (A) to (D) is clearly violative of Article 14 of the Constitution of India, thereby he contended that the denial of benefits to the candidates in the higher level education by Post-graduate medical course is opposed to the series of the dictum of the Hon’ble Supreme Court rendered as in the case of Vishal Goyal and others vs. State of Karnataka & others - 28 - WP No.12121 of 2022 [(2014) 11 SCC456 (Vishal Goyal) at paragraph No.10. He further contended that there is no domicile required, thereby he sought to allow the petition for the relief sought for.

25. In support of his contention, learned senior counsel relied upon the dictum of the Hon’ble Supreme Court in the case of Vishal Goyal stated supra at paragraph Nos.3, 4, 5, 11, 12, 13 and 15 read as under: “3. The National Board of Examinations issued two Information Bulletins for Post Graduate Entrance Test, 2014 (for short ‘the PGET-2014’) for admissions to the State Quota seats in Karnataka Government Colleges and Institutions and Karnataka Government Quota seats in private colleges/institutions/deemed universities. One Bulletin contained all information for admission to MD/MS/Medical Post Graduate Diploma Courses (Medical) and the other contained all information for admission to MDS/PG Diploma Courses (Dental). Clause 2 of these Information Bulletins lays down the criteria for PGET-2014. Clause 2.1 of these Information Bulletins for PGET- 2014 provides that no candidate shall be admitted to a professional educational institution unless the candidate possesses the qualifications or eligibility to appear for the entrance test stipulated thereunder.-. 29 - WP No.12121 of 2022 4. The said clause 2.1 of the two Information Bulletins, which is identically worded for admissions to Post Graduate Medical and Post Graduate Dental Courses, is extracted hereinbelow:

2. 1. No candidate shall be admitted to a professional educational institution unless the candidate possesses the following qualifications or eligibility to appear for the Entrance test namely: (a) He is a citizen of India who is of Karnataka origin and has studied MBBS/BDS degree in a Medical/Dental college situated in Karnataka or outside Karnataka, and affiliated to any university established by law in India recognized by Medical Council of India and Government of India. Explanation: “A candidate of Karnataka Origin” means a candidate found eligible under clause (i) or (ii) below, namely: (i) A candidate who has studied and passed in one or more Government recognized, educational institutions located in the State of Karnataka for a minimum period of TEN academic years as on the last date fixed for the submission of application form, commencing from 1st standard to MBBS/BDS and must have appeared and passed either SSLC/10th standard or 2nd PUC/12th standard examination from Karnataka State. In case of the candidate who - 30 - WP No.12121 of 2022 has taken more than one year to pass a class or standard, the years of academic study is counted as one year only. Documents to be produced, namely: (1) SSLC or 10th Standard Marks Card; (2) 2nd PUC of 12th Standard Marks Card of the candidate; (3) Candidates Study Certificate: A study certificate from the Head of educational institution where he or she had studied. Further, School Study Certificates should be counter signed by the concerned Block Education Officer (BEO)/Deputy Director of Public Instructions (DDPI) COMPULSORILY in the proforma prescribed; (4) Qualifying degree certificate and all phases marks card; (5) Domicile certificate issued by the Tahsildar in the prescribed proforma (Annexure-I); and if claiming reservation benefits: Caste/Caste Income Certificate issued by Concerned Tahsildar – For SC/ST in Form- D, Category-1 in Form-E and 2A, 2B, 3A and 3B in Form F. (6) MCI/DCI State Council Registration Certificate. (7) Attempt Certificate issued by the concerned college Principal concerned.-. 31 - WP No.12121 of 2022 (ii) The candidate should have studied and passed 1st and 2nd years Pre-University Examination or 11th and 12th standard examination within the State of Karnataka from an Educational Institution run or recognized by the State Government or MBBS/BDS from a professional educational institution located in Karnataka and that either of the parents should have studied in Karnataka for a minimum period of 10 years. Documents to be produced, namely: (1) SSLC or 10th Standard Marks Card; (2) 2nd PUC of 12th Standard Marks Card of the candidate; (3) Qualifying degree certificate and all phases marks card; (4) Domicile certificate issued by the Tahsildar in the prescribed proforma (Annexure-I); (5) If claiming reservation benefits: Caste/Caste Income Certificate issued by Concerned Tahsildar – For SC/ST in Form- D, Category-1 in Form-E and 2A, 2B, 3A and 3B in Form F and (6) (a) A study certificate for either of the parent *- having studied for at least 10 years in Karnataka from the Head of the educational institution where - 32 - WP No.12121 of 2022 he/she had studied. Further, school study certificates should be countersigned by the concerned Block Educational Officer (BEO)/ Deputy Director of Public Instructions (DDPI) COMPULSORILY in the proforma prescribed (Annexure-III); (b) The candidates study certificate for having studied both 1st and 2nd PUC or 11th & 12th Standard in Karnataka issued by the head of the educational institution. (7) MCI/DCI State Council Registration Certificate (8) Attempt Certificate issued by the college Principal concerned.

5. It will be clear from sub-clause (a) of clause 2.1 of the Information Bulletins extracted above that to be eligible to appear for the Entrance Test, a candidate must be of “Karnataka Origin”. The Explanation under sub-clause (a) of clause 2.1 of the Information Bulletins gives the meaning of “A candidate of Karnataka Origin”. The case of the petitioners is that by virtue of sub-clause (a) of clause 2.1 of the two Information Bulletins, they are debarred from appearing in the Entrance Tests for admissions to MD/MS/Medical Post Graduate Diploma Courses, 2014 or to MDS/Dental Post Graduate Diploma Courses, 2014 in the State of Karnataka even though they have studied MBBS/BDS in - 33 - WP No.12121 of 2022 institutions in the State of Karnataka. They have, therefore, challenged sub-clause (a) of clause 2.1 of the two Information Bulletins, as ultra vires of the Constitution as interpreted by this Court in Dr. Pradeep Jain and Others v. Union of India and Others [(1984) 3 SCC654. They also contend that in the aforesaid case of Dr. Pradeep Jain (supra), this Court has held that a certain percentage of seats must be reserved on the basis of institutional preference to enable students who have passed MBBS or BDS courses from medical or dental colleges in the State of Karnataka to get admission to Post Graduate medical or dental courses in the medical or dental colleges of the State of Karnataka. The petitioners have, therefore, prayed that sub-clause (a) of clause 2.1 of the two Information Bulletins be declared as ultra vires the Constitution and appropriate writs and directions be issued to the respondents to permit the petitioners to participate in the admission process of MD/MS/MDS and other Post Graduate medical and dental courses in the State of Karnataka. xxx xxx xxx 11. Mr. Mariarputham is right that in Saurabh Chaudri v. Union of India (supra), this Court has held that institutional preference can be given by a State, but in the aforesaid decision of Saurabh Chaudri, it has also been held that decision of the State to give institutional preference can be invalidated by the - 34 - WP No.12121 of 2022 Court in the event it is shown that the decision of the State is ultra vires the right to equality under Article 14 of the Constitution. When we examine sub-clause (a) of clause 2.1 of the two Information Bulletins, we find that the expression “A candidate of Karnataka Origin” who only is eligible to appear for Entrance Test has been so defined as to exclude a candidate who has studied MBBS or BDS in an institution in the State of Karnataka but who does not satisfy the other requirements of sub-clause (a) of clause 2.1 of the Information Bulletin for PGET-2014. Thus, the institutional preference sought to be given by sub- clause (a) of clause 2.1 of the Information Bulletin for PGET-2014 is clearly contrary to the judgment of this Court in Dr. Pradeep Jain’s case (supra). To quote from paragraph 22 of the judgment in Dr. Pradeep Jain’s case.

12. To quote from paragraph 22 of the judgment in Dr. Pradeep Jain’s case: “22…… a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the postgraduate course in the same medical college or university…..” - 35 - WP No.12121 of 2022 13. Sub-clause (a) of clause 2.1 of the two Information Bulletins does not actually give institutional preference to students who have passed MBBS or BDS from Colleges or Universities in the State of Karnataka, but makes some of them ineligible to take the Entrance Test for admission to Post Graduate Medical or Dental courses in the State of Karnataka to which the Information Bulletins apply. xxx xxx xxx 15. In the result, we allow the writ petitions, declare sub-clause (a) of clause 2.1 of the two Information Bulletins for post graduate medical and dental courses for PGET-2014 as ultra-vires Article 14 of the Constitution and null and void. The respondent will now publish fresh Information Bulletins and do the admissions to the post graduate medical and dental courses in the Government colleges as well as the State quota of the private colleges in accordance with the law by the end of June, 2014 on the basis of the results of the Entrance Test already held. We also order that the general time schedule for counselling and admissions to post graduate Medical Courses in our order dated 14.03.2014 in Dr. Fraz Naseem & Ors. v. Union of India will not apply to such admissions in the State of Karnataka for the academic year 2014-2015. Similarly, the general time schedule for counselling and admissions for post - 36 - WP No.12121 of 2022 graduate dental courses will not apply to such admissions in the State of Karnataka. The parties shall bear their own costs.” (emphasis supplied) 26. He also relied upon the dictum of the Hon’ble Supreme Court in the case of Dr. Kriti Lakhina & others vs. State of Karnataka and others [(2018)17 SCC453 with regard to Clause 4.1 and Clause 4.2 of the brochure and the same is referred in paragraph Nos.2, 3, 12 and 14 read as under: “2. The Information Bulletin in question lays down, inter alia, conditions for admission to postgraduate medical and dental courses in respect of government quota seats in medical/dental colleges in the State of Karnataka and was published on the website on 10- 3-2018. Relevant portion of Clause 4 of this Information Bulletin deals with eligibility conditions in the following terms: “4. Eligibility 4.1. Eligibility for government seats (G) & GMP seats A candidate who fulfils the following criteria is eligible to appear for the online seat allotment process, namely: • He/She is a citizen of India, who is of Karnataka origin and has studied MBBS or BDS degree in a medical or dental college situated in Karnataka or outside - 37 - WP No.12121 of 2022 Karnataka and affiliated to any University established by law in India recognised by Medical Council of India or Dental Council of India and Government of India and has qualified in NEET (National Eligibility-cum-Entrance Test) for admission to postgraduate medical or dental degree/diploma courses. Note.—Children for the purpose of the rule means natural born son/daughter and not adopted son/daughter and not grandson/granddaughter. Explanation.—A candidate of Karnataka origin: means, a candidate found eligible under Clause A or B below: (Clause A) (i) A candidate who has studied and passed in one or more government or government recognised educational institutions located in the State of Karnataka for a minimum period of TEN academic years as on 31-3-2018, commencing for 1st standard to MBBS/BDS and must have appeared and passed either SSLC/10th standard or 2nd PUC/12th standard examination from Karnataka State. In case of the candidate who has taken more than one year to pass a class or standard, the year of academic study is counted as one year only (document to be produced) (Clause B) (ii) The candidate should have studied and passed 1st and 2nd year pre-University examination or 11th - 38 - WP No.12121 of 2022 or 12th standard examination within the State of Karnataka from an educational institution run or recognised by the State Government or MBBS/BDS from a professional educational institution located in Karnataka and that either of the parents must have studied/resided in Karnataka for a minimum period of 10 years. (documents to be produced)

3. It is submitted by the petitioners that this Information Bulletin issued by Respondents 2 and 3, to the extent Clause 4.1 thereof imposes a condition of domicile for admission to MD, MS and postgraduate diploma seats in the State of Karnataka is invalid and unconstitutional. According to the petitioners, said Clause 4.1 arbitrarily and illegally deprives the petitioners who had obtained MBBS/BDS degrees from the colleges situated in Karnataka from competing for admission to postgraduate medical/dental courses in government medical colleges and against government quota seats in non-governmental institutions. Reliance has been placed on the judgment of this Court in Vishal Goyal v. State of Karnataka [Vishal Goyal v. State of Karnataka, (2014) 11 SCC456:

6. SCEC688 to submit that the controversy is no longer res integra and the view taken in Vishal Goyal [Vishal Goyal v. State of Karnataka, (2014) 11 SCC456:

6. SCEC688 ought to have been adhered to by Respondents 2 and 3 while issuing the Bulletin.-. 39 - WP No.12121 of 2022 12. During the course of its judgment in Pradeep Jain [Pradeep Jain v. Union of India, (1984) 3 SCC654 paras 20, 22 and 24]. this Court also considered the impact of submissions from the States concerned as advanced in various judgments that were considered in paras 14 to 16, which submissions were similar to the ones advanced before us by the State either in the reply or in the written submissions. Para 22 of the decision in Pradeep Jain [Pradeep Jain v. Union of India, (1984) 3 SCC654 paras 20, 22 and 24]. finally summed up the matter as regards postgraduate courses as under: (SCC pp. 692-93) “22. … The Medical Education Review Committee has also expressed the opinion that “all admissions to the postgraduate courses in any institution should be open to candidates on an all-India basis and there should be no restriction regarding domicile in the State/Union Territory in which the institution is located”. So also in the policy statement filed by the learned Attorney General, the Government of India has categorically expressed the view that: ‘So far as admission to the institutions of postgraduate colleges and special professional colleges is concerned, it should be entirely on the basis of all-India merit subject to - 40 - WP No.12121 of 2022 constitutional reservations in favour of Scheduled Castes and Scheduled Tribes.’ We are therefore of the view that so far as admissions to postgraduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to postgraduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the postgraduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50% of the total number of open seats available for admission to the postgraduate course. …

14. Paras 13 and 15 of the judgment of this Court in Vishal Goyal [Vishal Goyal v. State of Karnataka, (2014) 11 SCC456:

6. SCEC688 are clear that the Information Bulletin for PGET-2014 did not actually - 41 - WP No.12121 of 2022 give institutional preference to students who had passed MBBS/BDS from colleges or universities in the State of Karnataka but made some of them ineligible to take the entrance test for admission to postgraduate medical or dental course in the State of Karnataka and that the said clause was held ultra vires Article 14 of the Constitution and declared null and void. The relevant clause under consideration, namely, Clause 4.1 of the Information Bulletin for PGET-2018 is identical in substance to the one that was considered in Vishal Goyal [Vishal Goyal v. State of Karnataka, (2014) 11 SCC456:

6. SCEC688 . The matter is thus no longer res integra and is completely covered by the decision in Vishal Goyal [Vishal Goyal v. State of Karnataka, (2014) 11 SCC456:

6. SCEC688 . In the circumstances, we respectfully follow the decision of this Court in Vishal Goyal [Vishal Goyal v. State of Karnataka, (2014) 11 SCC456:

6. SCEC688 and hold Clause 4.1 of the Information Bulletin (PGET- 2018) which was published on the website on 10-3- 2018 to be invalid to the extent it disqualifies petitioners and similarly situated candidates who completed their MBBS/BDS degree courses from colleges situated in Karnataka from competing for admission to postgraduate medical/dental courses in government medical colleges and against government quota seats in non-governmental institutions.” - 42 - WP No.12121 of 2022 27. He further relied upon the dictum of the Hon’ble Supreme Court in the case of Meenakshi Malik vs. University of Delhi and others [(1989)3 SCC112 paragraph No.4 to the effect that the condition prescribed that the last two years of education within the State should be relaxed, in the case of students whose parents are transferred to a foreign country by the Government and who are therefore required to leave India along with them. Rules are intended to be reasonable, and should take into account the variety of circumstances in which those whom the rules seek to govern find themselves. The relevant paragraph No.4 reads as under: “4. It seems to us that the qualifying condition that a candidate appearing for the Entrance Examination for admission to a Medical College in Delhi should have received the last two years of education in a school in Delhi is unreasonable when applied in the case of those candidates who were compelled to leave India for a foreign country by reason of the posting of the parent by the Government to such foreign country. There is no real choice in the matter for such a student, and in many cases the circumstances of the student do not permit her to continue schooling in India. It is, of course, theoretically possible for a student to be put into a hostel to continue her - 43 - WP No.12121 of 2022 schooling in Delhi. But in many cases this may not be feasible and the student must accompany a parent to the foreign country. It appears to us that the rigour of the condition prescribing that the last two years of education should be received in a school in Delhi should be relaxed, and there should be no insistance on the fulfilment of that condition, in the case of students of parents who are transferred to a foreign country by the Government and who are therefore required to leave India along with them. Rules are intended to be reasonable, and should take into account the variety of circumstances in which those whom the rules seek to govern find themselves. We are of opinion that the condition in the prescription of qualifications for admission to a medical college in Delhi providing that the last two years of education should be in a school in Delhi should be construed as not applicable to students who have to leave India with their parents on the parent being posted to a foreign country by the Government.

28. Further, learned senior counsel relied upon the decisions in the case of Dipali d/o. Uttamrao Dakre, Nanded vs. State of Maharashtra [1999(1) Mh.L.J.

723]. and Vijay Dattatraya Bhilwadikar vs. State of Maharashtra & another [1997(3) Mh.L.J.

705]. to contend that the child of defence personnel has to pass SSC examination from the recognized - 44 - WP No.12121 of 2022 school/college situated in the State of Maharashtra and quashed and set aside the communication intimating the petitioner the invalidity of the claim insofar as the children whose parents were posted in the State of Rajasthan. He also placed reliance on the decision in the case of Raman Arora (Dr.) vs. University of Delhi & another [2002(64) DRJ214 to the effect that when the student had to go out of Delhi as and when his father was transferred, the denial of admission to the student is unreasonable, unjust and unfair. V. Arguments advanced by learned Additional Government Advocate for the State 29. Per contra, Sri Laxminarayan, learned Additional Government Advocate appearing for the State, while reiterating the objections filed by the State contended that the petitioner is entitled to Government seats in Government colleges, Government seats in private colleges, but he is not entitled to the seat in Post-graduation in minority institution in linguistic minority institution as he has not produced any certificate issued by the authorities as contemplated as per the Government Order dated 12/09/2018. In the absence of the same, the prayer sought for allotment of seat in linquistic minority institution is not maintainable and the same is liable to be dismissed. He would - 45 - WP No.12121 of 2022 further contend that in terms of the Government Order dated 12/09/2018, it is decided to appoint the concerned BEO’s in respect of studies undertaken from Standard 1 to 10 and the Deputy Director, Pre-University Education in respect of studies undertaken for Class 11 and 12 or its equivalent as Competent Authorities to issue Linguistic Minority certificates to the State students who seek admission to UG/PG Medical and Dental Courses under Linquistic Minority Reservation by considering the authenticated information issued by the Head of the Institution. Accordingly, they shall issue the certificates in the certificates in the enclosed format in Form 5 and 5-A respectively. Further, while allotment of seats to State students who seek admission to UG/PG Medical and Dental Courses under Linguistic Minority Reservation, it is ordered that the following conditions be followed from the year 2018-19: (i) Linguistic Minority Reservation is applicable to only to Karnataka State students whose Mother Tongue is Tamil, Telugu, Kodava and Tulu. (ii) He/she should have completed for a minimum 10 years of study from Class 1 to 12 in Karnataka. The same is followed by the State - 46 - WP No.12121 of 2022 Government. Therefore, he sought to dismiss the writ petition.

30. In support of his contention, Sri Laxminarayan, learned Additional Government advocate relied upon the dictum of the Division Bench of this Court in the case of Mylepalle Vaibhavi vs. Karnataka Examinations Authotity, rep. by its Executive Director and others [ILR2018Kar. 3707]. on the principle that claim for the status of a ‘linguistic minority’ in Karnataka, for the purpose of admission to under graduate medical and dental courses in the State-‘Linguistic minority’ status in a State, determination of criteria of ten years of study in Karnataka as prescribed under Clause 2.2 of the Karnataka State Information Bulletin is upheld by this Court. Therefore, the said case is squarely applicable to the facts and circumstances of the present. It is also contended that in view of the provisions of Section 18 of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 issued by the State Government vide Annexure – Q is not challenged nor Rule 9 of the Rules has challenged. Hence, he sought to dismiss the writ petition.-. 47 - WP No.12121 of 2022 VI. Arguments advanced by the counsel for R-3 Karnataka Examination Authority 31. Sri N.K. Ramesh, learned counsel for respondent No.3/Karnataka Examination Authority contended that the very writ petition filed for the relief of quashing Annexure – Q is premature. Admittedly, the petitioner has not approached the competent authority to get linguistic minority certificate in terms of the Government Order dated 12/09/2018 though he made representation to the other authorities were not competent to issue the linguistic minority certificate. Therefore, to that extent, the writ petition filed is premature. He would further contend that the provisions of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 is applicable to the facts and circumstances of the present case. He would further contend that Section 2(i) contemplates that “Government seats” means all seats in Government colleges, university constituent colleges, such number of the seats in Private Aided Professional Educational Institutions as may be notified by the State Government and such number of the seats in unaided minority and non-minority professional educational institutions and seats in private universities and deemed universities as - 48 - WP No.12121 of 2022 may be notified by the State Government in accordance with the consensus arrived at between the private professional educational institutions, private universities, deemed universities and the State Government. He further refers to Section 2(l) “minority” means and includes religious and linguistic minority as may be notified by the State Government. He also refers to Section 2(m) “minority educational institution” means the education institutions recognised or notified as such by the State Government subject to such conditions as may be prescribed.

32. He also refers to the provision of Section 4(a) of the said Act contemplates the meaning of “method of admission in case of consensual agreement” and Section 18 of the said Act specifies the “Power of State Government to issue directions” and Section 23 speaks about the “power to make rules”. He further contended that the rule does not say, in the absence of any linguistic minority certificate, the petitioner is not entitled to seek reservation benefit. Hence, the petitioner is not entitled to any relief before this court. He would further contend that the 1st petitioner is not entitled for seat in minority linguistic institution, in the absence of certificate - 49 - WP No.12121 of 2022 issued by the State Government by the competent authority that the petitioner belongs to linguistic minority, the petitioner is not entitled to the relief sought for. Therefore, he sought to dismiss the writ petition.

33. The learned senior counsel Sri P.P. Hegde, sought reliance on para 14 in the case of Vishal Goyal stated supra. Thereby, he sought for dismissal of the writ petition. VII. The Points for determination 34. In view of the aforesaid rival contentions urged by learned counsel for the parties, the points that arise for our consideration in the present writ petition are as under: (i) Whether the petitioner has made out a case to issue direction to the respondent to consider the representation dated 06/06/2022 as per Annexure- M?. (ii) Whether the petitioner has made out a case to extend the exemption being granted to the Government seats (as per Clause

4) and private seats (as per Clause 4.2 A under the Government of Karnataka Examination Authority Bulletin/Guidelines of PG-NEET-2021?. - 50 - WP No.12121 of 2022 (iii) Whether the petitioner claims that he belongs to linguistic minority community and is entitled to linguistic minority seats in a linguistic minority institutions?. (iv) Whether the petitioner has made out a case to quash condition No.2 of the Government Order dated 12/09/2018 issued by respondent No.1 vide Annexure –Q insofar as it pertains to students whose parents are employed under service of the Government and have been residing outside the State of Karnataka on account of transfer by Government during the relevant period?. VIII. Consideration 35. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.

36. It is an undisputed fact that petitioner No.1 is aspirant of Post-graduation and accordingly he has attended PG-NEET for the year 2022 Exams and secured All India rank of 43,445. It is not the case of the petitioner in the entire pleadings in the writ petition that though has obtained the certificate of linguistic minority as contemplated under the Government Order dated 12/09/2018 issued by the competent - 51 - WP No.12121 of 2022 authority, the same is not considered for allotment of PG seat under the linguistic minority (Tulu) category in pursuance of the Government Order to PG-NEET issued in 2021. By a careful perusal of Annexure – M dated 06/06/2022 issued by petitioner No.2 to the Director of Medical Education, Government of Karnataka and to the Executive Director, Karnataka Examination Authority sought eligibility criteria for NEET PG Admissions under the Linguistic Minority quota. The same is not considered by the authority concerned till today. The State Government under the provisions of Section 18 of the Karnataka Professional Education Institutions (Regulation of Admission and Determination of Fee) Act, 2006 which contemplates “power of State Government to issue directions” wherein the State Government may give such directions to any professional educational institutions as in its opinion are necessary for expedient for carrying out the purposes of this Act or to give effect to any of the provisions contained therein or of any rules or orders made thereunder and the Governing Council or the management, as the case may be, of such institution shall comply with every such direction. Sub-section (2) of Section of Section 18 specifies that the State Government may also give such directions to the officers or - 52 - WP No.12121 of 2022 authorities under its control as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of such officer or authority to comply with such directions. In pursuance of exercise of power, the State Government issued Government Order dated 12/09/2018 prescribing the concerned competent authorities to issue linguistic minority certificates on the basis of the authenticated information issued by the heads of the institutions namely, the BEO for the studies undertaken from 1st standard to 10th standard and the Deputy Director, Pre-university Education in respect of the studies undertaken under class 11 and 12 or its equivalent. To issue such certificate, two conditions have to be followed from the year 2018-19 as under: (i) Linguistic minority reservation is applicable only to the Karnataka State students whose mother tongue is Tamil, Kodava and Tulu; and (ii) He or she should have completed minimum ten years of study from class 1 to 12 in Karnataka.

37. Admittedly, the petitioner has not challenged rule making power under Section 18 of the Act stated supra in the present writ petition. What is challenged is only the - 53 - WP No.12121 of 2022 consequential benefit by the Government with all that the Government Order contemplates is power given to Head of the institution for issue of linguistic certificate to the said students who seek admission to UG/PG and medical cases under the linguistic minority reservation on authenticate information. Admittedly, in the present case, it is not the case of the petitioner that considering the authentic information the Head of the Institution has issued linguistic minority certificates to seek admission for UG and PG medical dental courses with linguistic minority reservation. In the absence of any certificate, the very prayer by the petitioner No.1 that he is entitled to the PG studies in linguistic minority institution cannot be accepted. Admittedly, under the brochure/bulletin issued by the State of Karnataka, the petitioner is not barred to compete the Government seats in Government colleges and Government seat in private colleges if he is eligible to compete in the said quota. But petitioner No.1 is claiming Post Graduation Course under the Linguistic Minority Category (Tulu-MU) which has to be followed as per the procedure as contemplated under the Government Order dated 12.09.2018 issued by the State Government.-. 54 - WP No.12121 of 2022 38. Admittedly, though a specific contention was raised by the learned Senior Counsel for the petitioners that from 3rd Standard to 6th Standard on account of transfer of petitioner No.2-father of petitioner No.1, petitioner No.1 had done his said education at Sri Vidya Secondary School, Hyderabad and eight years of education i.e., I, II, VII to X Grade, PUC-I and II in the Karnataka State and petitioner No.1 having completed his MBBS Course and internship in A.J.

Institute of Medical Science and Research Center, Mangaluru, he is entitled for benefit of exemption to the PG-NEET Course under the Government Seats and Private Seats in Tulu Linguistic Minority Institutions, the same cannot be accepted as the candidate must have studied and passed MBBS/BDS Course in recognized Medical/Dental Institutions located in India and studied for minimum period of ten academic years commencing from 1st to 12th standard. Admittedly, the petitioner has not approached the concerned competent authority for issuance of Tulu Linguistic Minority Certificate to enable him to seek admission to PG-NEET seat under the reservation for Tulu Linguistic Minority reservation by concerned Linguistic Minority Institutions. In the absence of the same, petitioner No.1 cannot claim any reservation on linguistic minority basis.-. 55 - WP No.12121 of 2022 39. Though it is contended that because of frequent transfers of the parents, petitioner No.1 has not completed ten years as contemplated in the Government order, but no rules are framed to that effect, the fact remains that the Act that is applicable to the instant case i.e., Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 does not contemplate exemption to any professional course where the parent of the student, who is aspirant for Post Graduation in Medical Course, is on frequent transfer under employment and belonging to linguistic minority, is entitled to a seat in Linguistic minority institution. In the absence of any provision in the Act or Rule, petitioner No.1 is not entitled for any relief as sought in the present writ petition.

40. Admittedly, in the present case, for providing exemption to the students of such parents, who are on frequent transfers, in the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006, no rule is framed in terms of the provisions of Section 18 of the Karnataka Professional Educational Institutions (Regulation of - 56 - WP No.12121 of 2022 Admission and Determination of Fee) Act, 2006, except the Government Order issued by the State Government on 12.9.2018,. Merely because petitioner No.1 belongs to Tulu linguistic community which is a linguistic minority community, in the absence of any Rules/Regulations framed thereunder, he cannot claim a seat under the linguistic minority. Therefore, the contention that petitioner No.1 is entitled to a seat under the Tulu linguistic minority community in a linguistic minority institution cannot be accepted. It is not the case of petitioner No.1 before this Court that though he belongs to Tulu linguistic minority community, the Government has not provided him PG- NEET seat either under the Brochure or Bulletin issued by the Government of Karnataka Examination Authority that he is eligible for Government Seat either in Government Colleges or in Private Colleges. Infact, the learned Government Advocate fairly submits that petitioner No.1 is entitled to Government seat in Government Colleges or Government seat in Private Colleges, but in the absence of any Rule or Linguistic Certificate issued by the competent authority, he is not entitled for any Post Graduate-NEET seat in a linguistic minority community institution. Therefore, the contention of the learned Senior - 57 - WP No.12121 of 2022 Counsel that the discrimination between Eligibility for Government Seats (G). Clauses-4.1 (a), (b), (c) and Eligibility for Private Seats-4.2(D) in respect of minority institution cannot be accepted.

41. Clauses-4.1 Eligibility for Government Seats (G) stipulates that: a) a candidate must be a citizen of India; b) have studied and passed MBBS/BDS in a recognized Medical/Dental institution in the State of Karnataka; or c) have studied and passed MBBS/BDS in recognized Medical/Dental Institutions located in India and has studied for a minimum period of ten academic years commencing from 1st Standard to 12th Standard and must have appeared and passed either SSLC or 10th Standard or 2nd PUC or 12th Standard equivalent examination from the Karnataka State; Clause 4.2 contemplates ELIGIBILITY for Private Seats (GMP, OPN & MK, MA, ME, MU, MC, MM seats).-. 58 - WP No.12121 of 2022 i) Petitioner No.1 is claiming under Tulu Linguistic Minority and thereby Clause 4.2 D is applicable which depicts Linguistic Minority (MA, ME, MK, MU) reservation is applicable to persons belonging to linguistic minority of the Karnataka State, whose mother tongue is Tamil or Telugu or Kodava or Tulu; and ii) A candidate who has studied and passed in one or more Government or Government recognized, educational institutions located in the State of Karnataka for a minimum period of TEN academic years on the 31st of March, 2021, commencing from 1st Standard to 12th Standard and must have appeared and passed either SSLC/10th Standard or II PUC/12th Standard Examination from Karnataka State. It is relevant to note that petitioner No.1 fulfills condition No.(i) but not condition No.(ii) [Minimum period of ten academic years]. as the Act does not exempt minimum period of ten academic years or the Government Order, Annexure-Q in view of the provisions of Section 18 of the Act issuing direction in the - 59 - WP No.12121 of 2022 absence of challenge to the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 as it does not provide such exemption to the students, whose parents are on frequent transfers outside the State. As such, petitioner No.1 is not entitled for exemption in absence of any challenge to the Act under the provisions of Section 18 of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 which envisages Power to the State Government to issue directions to any professional educational institution as policy decision of the State Government fixing minimum period of ten years to issue certificates. Admittedly, it is not the case of petitioner No.1 that he has approached the competent authority to issue such Tulu Linguistic Minority Certificate as contemplated in the Government Order, dated 12.9.2018, and at any stretch of imagination, he is not eligible to claim reservation in the Post Graduate Course in Tulu Linguistic Minority that he belongs to Tulu Community as the Act is silent about the exemption.

42. At this stage, it is relevant to go through some of the following definitions under Section 2 of the Karnataka - 60 - WP No.12121 of 2022 Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006: Section 2(i) ‘Government seats’ means all the seats in Government Colleges, University constituent colleges, such number of the seats in Private Aided Professional Educational Institutions as may be notified by the State Government and such number of the seats in unaided minority and non-minority professional educational institutions and seats in private universities and deemed universities as may be notified by the State Government in accordance with the consensus arrived at between the private professional education institutions, private universities, deemed universities and the State Government; Section 2(kk) ‘Karnataka Student” means persons who have studied in such educational institutions in the State of Karnataka run or recognized by the Government and for such number of years as may be prescribed; Section 2(l) “Minority” means and includes religious and linguistic minority as may be notified by the State Government; - 61 - WP No.12121 of 2022 Section 2(m) ‘Minority Educational Institution’ means the education institutions recognized or notified as such by the State Government subject to such conditions as may be prescribed.

43. The provisions of Section 9 of the said Act stipulates 9. Allocation and reservation of seats.- Out of the total intake of seats in a professional educational institution,- (i) (a) in an aided institution, all Government seats shall be filled through the State Common Entrance Test Committee in accordance with section 3(6) subject to the reservation policy of the State Government; and (b) the remaining seats shall be general seats. (ii) (a) in an unaided non-minority institution fifty percent of the seats shall be reserved for candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes from the State as - 62 - WP No.12121 of 2022 notified by the State Government; and (b) the remaining seats shall be general category seats. Out of the general category seats upto fifteen percent may be filled by candidates belonging to the Non-Resident Indian quota: Provided that where the seats reserved for the Scheduled Castes, Scheduled Tribes and Other Backward Classes in an unaided non minority institution are left unfilled due to non-availability of the candidates, or where students of reserved categories leave after they select the seats, the same shall be filled by the candidates belonging to the same category out of the merit list of the Common Entrance Test conducted by the State Common Entrance Test Committee: Provided further that if seats are remain unfilled even thereafter, such unfilled seats shall be filled from the student belonging to general merit on the basis of merit through the Common Entrance Test conducted by the association of Unaided Private Professional Educational Institutions.-. 63 - WP No.12121 of 2022 (iii) (a) In an unaided minority professional educational institution, not less than sixty six percent of the seats shall be filled by minority students from within the State belonging to the minority community to which the institution belongs on the basis of interse merit in the merit list of the Common Entrance Test of the Association of Private Professional educational institutions; and (b) the remaining seats shall be the general category seats. Out of the general category seats, upto fifteen percent may be filled by candidates belonging to the Non Resident Indian quota: Provided that if any seats earmarked for the minority category in unaided institutions remain unfilled or where the students leave after selection of seat the same shall be filled by minority students of the same categories out of the merit list of the Common Entrance Test conducted by the State Common Entrance Test Committee: - 64 - WP No.12121 of 2022 Provided further that if seats are remain unfilled even thereafter, such unfilled seats shall be filled from the student belonging to general merit on the basis of merit through the Common Entrance Test conducted by the association of Unaided Private Professional Educational Institutions. (iv) Admission to all seats in a private unaided professional educational institutions including reserved or general category seats but excluding the seats which may be filled by Non-resident Indian candidates, shall be made on the basis of merit by following the procedure of Common Entrance test followed by centralized counseling conducted in the manner as specified by the Admission Overseeing Committee.” Admittedly, the said section is also not challenged by the petitioners.

44. In the absence of any statutory enforcement, the only direction/prayer of the petitioners is, for issue of writ of mandamus directing the respondents to issue Tulu Linguinstic - 65 - WP No.12121 of 2022 Minority Certificate with liberty to petitioner No.1 to file a representation to the competent authority as per the Government Order dated 12.9.2018. But this Court cannot direct the respondents to grant seat in a linguistic minority institutions in the absence of any right to petitioner No.1 either under the Act or under any Government Order, since the rule making power under Section 18 of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 has not been challenged by the petitioners and therefore, question of quashing Annexure- Q Government Order dated 12.9.2018 issued by the State Government appointing BEO and the Deputy Director of Pre- University equivalent to competent authority to issue Linguistic Minority Certificate to the students, who seek admission to Post Graduate in Medical/Dental Courses under the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 issued by the Head of the Department, does not arise. In exercise of powers under Section 18 of the said Act, the State Government has issued Government Order, dated 12.9.2018, but petitioner No.1 though fulfills condition No.(i), but not condition No.(ii), it is for the petitioners to approach the competent authority-State for - 66 - WP No.12121 of 2022 issue of proper certificate and if on such approach, petitioner No.1 is able to obtain such certificate, he is certainly eligible to claim a seat in the Linguistic Minority Institutions/Colleges and until and unless the certificate is issued by the competent authority, petitioner No.1 cannot claim allotment of PG-NEET seat reserved for Tulu Linguistic Minority Community.

45. However, as it is already held that petitioner No.1 is entitled to approach the competent authority along with other students, who attended the All India PG-NEET Examination in respect of Government Seats in Government Colleges and Government seats in Private Colleges, he is not entitled for PG- NEET in the Linguistic Minority Institution, in the absence of any Linguistic Minority Certificate or in the absence of any Act or Rules framed thereunder; 46. Though Sri P.P. Hegde, learned Senior Counsel for the petitioners relied upon the dictum of the Hon’ble Supreme Court in the case of Vishal Goyal –vs- State of Karnataka and Others reported in (2014) 11 SCC456where the reservation of Seats/ Quota/ Exemption/ Priority/ Affirmative Action/ Reverse Discrimination – Criteria for reservation – Scope of giving institutional preference – limits on private - 67 - WP No.12121 of 2022 colleges – State quota in private colleges, held that the public law principles are applicable in case of private medical colleges also if they are instrumentalities or agencies of State or opt to join the scheme formulated in the case of Dinesh Kumar –vs Motilal Nehru Medical College reported in (1986) 3 SCC727to an extent of the State quota. In the said case, institutional preference was sought to be given to a candidate of Karnataka origin under Clause 2.1(a) excluding some MBBS/BDS students of institutions in State of Karnataka on the ground that they had not studied from I to 10 and plus 2 inside Karnataka, and it was held by the Hon’ble Supreme Court that Clause 2.1 of the two Information Bulletins for postgraduate medical and dental courses for PGET-2014 ultra vires Article 14 of the Constitution, and the principles laid down by this Court in the case of Pradeep Jain –vs- Union of India reported in (1984) 3 SCC654 In fact, Clause 2.1(a) of said information bulletin does not give institutional preference to students doing MBBS/BDS from institutions in Karnataka under Articles 14 and 371-J of the Constitution of India. In the very judgment, the Hon’ble Supreme Court at paragraph-18 has held as under: - 68 - WP No.12121 of 2022 “18. The second consideration which has legitimately weighed with the courts in diluting the principle of selection based on merit is the claim of backwardness made on behalf of any particular region. There have been cases where students residing in a backward region have been given preferential treatment in admissions to medical colleges and such preferential treatment has been upheld on the ground that though apparently discriminatory against others, it is intended to correct the imbalance or handicap from which the students from the backward region are suffering and thus bring about real equality in the larger sense. Such preferential treatment for those residing in the backward region is designed to produce equal opportunity on a broader basis by providing to neglected geographical or human areas an opportunity to rise which they would not have if no preferential treatment is given to them and they are treated on the same basis as others for admissions to medical colleges, because then they would never be able to compete with others more advantageously placed. If creatively and imaginatively applied, preferential treatment based on residence in a backward region can play a significant role in reducing uneven levels of development and - 69 - WP No.12121 of 2022 such preferential treatment would presumably satisfy the test of Article 14, because it would be calculated to redress the existing imbalance between different regions in the State. There may be a case where a region is educationally backward or woefully deficient in medical services and in such a case there would be serious educational and health service disparity for that backward region which must be redressed by an equality and service minded welfare State. The purpose of such a policy would be to remove the existing inequality and to promote welfare based equality for the residents of the backward region. If the State in such a case seeks to remove the absence of opportunity for medical education and to provide competent and adequate medical services in such backward region by starting a medical college in the heart of such backward region and reserves a high percentage of seats there to students from that region, it may not be possible to castigate such reservation or preferential treatment as discriminatory. What is directly intended to abolish existing disparity cannot be accused of discrimination. Krishna Iyer, J.

said to the same effect when he observed in Jagdish Saran case [(1980) 2 SCC768: AIR1980SC820: (1980) 2 SCR - 70 - WP No.12121 of 2022 831]. at p. 856 of the Report: (SCC p. 786, para

42) “We have no doubt that where the human region from which the alumni of an institution are largely drawn is backward, either from the angle of opportunities for technical education or availability of medical services for the people, the provision of a high ratio of reservation hardly militates against the equality mandate viewed in the perspective of social justice.” This was precisely the ground on which, in the State of Uttar Pradesh v. Pradip Tandon [(1975) 1 SCC267: AIR1975SC563: (1975) 2 SCR761 this Court allowed reservation in medical admissions for people of the hill and Uttarakhand areas of the State of U.P. on the ground that those areas were socially and educationally backward. Similarly, the Andhra Pradesh High Court in Nookavarapu Kanakadurga Devi v. Kakatiya Medical College [AIR1972AP83: ILR1973AP1155 held that preferential treatment of Telangana students in medical admissions was justified since - 71 - WP No.12121 of 2022 “… Kakatiya Medical College was started for the spread of medical education mainly for Telangana region, which is educationally backward in the State. If in view of this object provision is made to cater to the educational needs, mainly of that particular region, as it badly requires such assistance, it cannot be said that the object to be achieved has no relation to the classification made by giving larger representation to the Telangana region and lesser representation to the Andhra region. The increase in the Telangana quota is consistent with and promotes and advances the object underlying the establishment of the institution.” We are however not concerned here with a case of reservation or preference for persons from a backward region within a State and we need not therefore dwell any longer upon it. Thereby the said judgment has no application to the facts and circumstances of the present case.-. 72 - WP No.12121 of 2022 47. Another judgment relied upon by the learned Senior Counsel for the petitioners is Dr. Kriti Lakhina and Others – vs- State of Karnataka and Others reported in (2018) 17 SCC453wherein at paragraph-2, the Hon’ble Supreme Court has held that the Information Bulletin in question lays down, inter alia, conditions for admission to postgraduate medical and dental courses in respect of government quota seats in medical/dental colleges in the State of Karnataka and was published on the website. In the present case, it is not the case of petitioner No.1 that he has been deprived of the Government seat both in Private and Government Colleges and his main grievance is that he is entitled to Post Graduation Seat in all the Linguistic Minority Institutions so that there will be lesser competency for him. Therefore, the said judgment has no application to the facts and circumstances of the present case.

48. The Other judgment relied upon by the learned Senior Counsel for the petitioners is Vij Resins Pvt. Ltd. –vs- State of Jammu and Kashmir reported in (1989)2 SCC115wherein the Hon’ble Supreme Court at paragraph-4 has held that the condition prescribed for minimum years of - 73 - WP No.12121 of 2022 education within the State should be relaxed in the case of students, whose parents travel outside the State on account of service in the Government and such condition of minimum years of education within the State should be construed as not applicable to such students who will have to leave the State on account of transfer. We have no quarrel with the law laid down by the Hon’ble Supreme Court in the said case. Though it was a case for MBBS Degree, the fact remains that this Court cannot legislate the said provision for relaxation and it is for the State Government. As already stated supra, in view of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, was enacted in the year 2006 under the provisions of Section 23 of the Act, it is for the State Government to make proper rules and consider the principle laid down by the Meenakshi Malik –vs- University of Delhi and others reported in (1989)3 SCC112 and this Court cannot legislate to make such relaxation by making appropriate rules. Therefore, the said judgment has no application to the facts and circumstances of the present case.

49. The learned Senior Counsel for the petitioners also relied upon the judgment in the case of Vaidhehi Subhash - 74 - WP No.12121 of 2022 Natu –vs- State of Maharashtra and Others reported in 1997(3) Mh.L.J672(Writ Petition NO.2812/1997 D.D.5.9.1997) where the Rule for Selection to M.B.B.S and B.D.S. Courses for 1997-98 particularly Rule 3(b) requiring passing of SSC or equivalent examination from the Maharashtra made by the State Government being in the matter of institutional preference was valid or not for relaxation of the rule in respect of children of Government Employees challenge on the ground that children of employees in private service have been discriminated, the Bombay High Court held that the case of the petitioner cannot be placed or treated on par with that of the children of Central Government and State Government employees. So far as the employees of the Central Government and State Government are concerned, their services are transferable and they have no choice and no option in the matter. The relaxation in the said condition is made in respect of the children of the Government employees because there is no choice in the matter for such a student and the condition of passing S.S.C., examination from the State of Maharashtra would have worked hardship on the candidate. Admittedly, in the present case, the petitioners have not made out provisions of the Act or Rules and to that effect, no order is - 75 - WP No.12121 of 2022 issued by the Government. In the absence of the same, though we have no quarrel with the said judgment, the fact remains that this Court cannot legislate. It is for the State Government to make appropriate rules to prevent such anomalies driving the students/parents every year to this Court. Therefore, the said judgment is also not applicable to the case on hand.

50. This Court had an occasion to consider the claim of the petitioner for the status of a ‘linguistic minority’ in Karnataka for the purpose of admission to under graduate medical and dental courses in the State in the case of Mylepalle Vaibhavi –vs- Karnataka Examinations Authority, represented by its Executive Director and Others reported in ILR2018Kar. 3707 wherein at paragraph-7, it was held as under: “7. The two decisions of the Supreme Court referred to by the petitioner's Counsel do not lay down any criteria to determine a linguistic minority in a State. Hence, they have no bearing on the question raised in this petition. In Monisha's case referred to above, the proviso to Clause 2.2 of the Bulletin whose - 76 - WP No.12121 of 2022 validity is challenged in this petition did not even fall for consideration and further no criteria is laid down therein for determination of a linguistic minority in a State. Therefore, the said decision is not of any assistance to the petitioner.” As such, the same principle has to be applied in the present case.

51. It is well settled that the authorities of the Government are under Constitutional duty coupled with power. Every public servant is a trustee of the society and in all facets of pubite administration, every public servant has to exhibit honesty, integrity, sincerity and faithfulness in implementation of the political, social economic and constitutional policies to integrate the nation, to achieve excellence and efficiency in the public administration. A public servant entrusted with duty and power to implement constitutional policy under Articles 14, 21 and 300 and all inter-related directive principles of State policy under the Constitutional, should exhibit transparency in implementation and of accountable for due effectuation of constitutional goals.-. 77 - WP No.12121 of 2022 52. In view of the fact that neither proper rules are framed nor there is any clarification for students, whose parents will be on frequent transfers outside the State of Karnataka as has been done in the present case since petitioner No.1 has studied outside Karnataka State for four years, it is high time for the State Government to open its eyes to specify the reasonable criteria by framing proper rules as contemplated under Rule 23 of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 in order to facilitate the students, who stand on the same footing like the present petitioner No.1.

53. Under the provisions of Section 23 of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act which is enacted in the year 2006 in order to avoid inconvenience to the students and their parents, who are working on transfers outside the State of Karnataka, the State Government is bound to clarify by framing appropriate rules by setting right the anomalies in the Government Order to provide seats to students, who aspire for PG-NEET Course and it cannot sit on the fence driving the students unnecessarily before this Court. Merely because - 78 - WP No.12121 of 2022 Section 18 of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 empowers the State Government to issue directions, it has only issued notification that too in the year 2019 in pursuance of the direction issued by this Court. Thereby, in the absence of any provision for such students like the present petitioner No.1, who was outside Karnataka for a period of four years, it is for the State Government to make rules forthwith clarifying the anomaly. Otherwise, the students would be unnecessarily driven to approach the Court every year, whose aspiration for PG-NEET Course with great expectation, is indirectly scuttled by the State Government,.

54. Like any other organ of the State, the Judiciary is also manned by human beings - but the function of the judiciary is distinctly different from other organs of the State - in the sense its function is divine. Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors fail, people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. It is high - 79 - WP No.12121 of 2022 time the judiciary must take utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justice-delivery system resulting in the failure of public confidence in the system. We must remember that woodpeckers inside pose a larger threat than the storm outside. As such the State Government has to frame the rules within a reasonable time and act as parental to the Society. IX. Conclusion 55. For the reasons stated above, in the absence of any statutory eligibility pointed out by petitioner No.1, he is not entitled to seek any direction to the respondents to extend the exemption being granted to the Government Seats in the Linguistic Minority Institution and the Government Order, dated 12.9.2018, issued by the State Government cannot be quashed for the reasons stated above. As such, points-2 to 4 raised in the present petition have to be answered in the negative holding that the petitioners have not made out any case to grant any relief as sought for. But the fact remains that the petitioners have made an attempt on 6.6.2022 by giving representations to respondent Nos.2 and 3 - the Directorate of Medical Education, Government of Karnataka and the - 80 - WP No.12121 of 2022 Karnataka Examination Authority, who are not the authorities under the Government Order, dated 12.9.2018. In that view of the matter, as the Government Authorities are the BEO in respect of studies undertaken from Standard 1 to 10 and the Deputy Director, Pre-University Education in respect of studies undertaken for Classes 11 and 12 or its equivalent, who are the Competent Authorities to issue Linguistic Minority Certificates to the State students, who seek admission to UG/PG Medical and Dental Courses under Linguistic Minority Reservation by considering the authenticated information issued by the Head of the Institutions, we are of the considered opinion, that petitioner No.1 be permitted to approach the competent Head of the Institution, and on receipt of such representation, the authorities as contemplated under the Government Order, dated 12.9.2018, shall consider and pass appropriate orders within a period of two weeks from the date of receipt of representation of petitioner No.1. Accordingly point No.1 is answered.

56. Admittedly, in the present case, though the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, came into force in - 81 - WP No.12121 of 2022 the year 2006, we are now in the year 2022 and even after a lapse of more than 16 years, the Government cannot sit on the fence allowing the students and their parents to approach/knock the doors of this Court every year for their admission to Post Graduate Courses and it is for the State Government to open its eyes to frame proper rules as contemplated under the provisions of Rule 23 of the Act. The persons like the present petitioner, whose parents are on transfers outside the State of Karnataka due to the posts held by them are facing trouble, the same has to be clarified by the State Government by framing proper rules acting as a parental society. X. Result 57. In view of the aforesaid reasons, we pass the following:

ORDER

i) Writ Petition is allowed in part; ii) The petitioner No.1 is permitted to make representation to the concerned authorities as contemplated under the Government Order dated 12.9.2018, within a period of one week from the - 82 - WP No.12121 of 2022 date of receipt of a copy of this order and on such, receipt of representation, the authorities shall consider the same and pass appropriate orders within a period of two weeks from the date of receipt of the said representation; iii) It is high time for the State Government to make rules as contemplated under the provisions of Rule 23 of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006; iv) The relief sought in prayers-(b), (d) and (e) cannot be granted for the reasons stated supra and accordingly, the said prayers are hereby rejected. To that effect, it is for the State Government to frame proper rules in terms of the provisions of Rule 23 of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 within a reasonable period; - 83 - WP No.12121 of 2022 v) It is needless to observe that petitioner No.1 is entitled to Government Seat in Government Colleges and Government Seat in Private Colleges in accordance with the procedure contemplated and Bulletin/Guidelines issued by the Karnataka Examination Authority for PG-NEET; 58. The erudition of the learned Counsel for the parties in their arguments, industry, vision and above all, dispassionate objectivity in discharging their role as officers of the Court must be commended. We acknowledge the assistance rendered by Sri P.P. Hegde, learned Senior Counsel for the petitioners, Sri Laxminarayan, Additional Government Advocate for respondent Nos.1 and 2 and Sri N.K. Ramesh, Advocate for respondent No.3 is appreciated and the same are placed on record. Sd/- JUDGE Sd/- JUDGE Pages 1 to 14 ….Gss 15 to 53 ….S* 54 to end …Nsu