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Judgment
K.M. Joseph, J.—Petitioners have approached this Court seeking the following reliefs:
a) Issue a writ of certiorari or any other appropriate writ order or direction quashing Ext. P4 to the extent of including respondents 4 and 5 who
are serial Nos. 14 and 15 eligible for fee concession in SEBC category,
b) Issue a writ of mandamus or any other appropriate writ order or direction directing the 2nd respondent to include the petitioners in the low
income group by changing serial No. 7 and 11 in Ext. P4 to SEBC category and further direct to refund the excess fee provisionally paid at the
time of admission.
c) declare that petitioners are entitled for fee concessions under the low income group to pursue their studies in the MBBS course in 3rd
respondent college.
Briefly put, the case of the petitioners is as follows:
The fist petitioner secured rank No. 1093 and she was allotted to the third respondent college under Ext. P1 allotment memo. The second
petitioner was also allotted to the same college for MBBS course vide Ext. P2 allotment. Ext. P3 is the prospectus. Relevant clauses which give
raise to the dispute reads as follows:
6(a)14% of candidates from among those allotted by the Commissioner for Entrance Examination in each institution coming under BPL families as
per Kerala Sate Norms irrespective of rank or category need only pay an annual tuition of Rs. 25000/- (Rupees twenty five thousand only). If
enough number of candidates belonging to BPL category as above are not available, the balance number of candidates will be allowed
concessional fees of Rs. 25,000/- (Rupees twenty five thousand only) per annum to be selected from among those allotted by the Commissioner
for Entrance Examination in each institution from those having lower family income irrespective of rank or category. However SC/ST category of
candidates, who already enjoy fee concession benefits, will not be considered for the above purpose. In addition, 2% of candidates who have
been allowed SEBC status by the Commissioner for Entrance Examination in each institution shall also pay an annual tuition fee of Rs. 25,000/-
(rupees twenty five thousand only). They will be selected on the basis of the rank. However, if the required number of SEBC candidates is not
available among the students allotted by the CEE in the institution, the remaining number of candidates will be selected from among the general
category on the basis of income irrespective of rank or category with the total number of SEBC students eligible for concessional fee not exceeding
26% as above. b) The same principle as explained in clause (a) is applicable to the minority institutions also.
The petitioners have been denied the benefit of fee concession made available under Socially and Educationally Backward Classes(SEBC).
They have remitted Rs. 1,35,000/- provisionally at the time of admission. Family income of the first petitioner is Rs. 2,00,478/- whereas the family
income of the second petitioner is Rs. 2,09,840/-. According to them, in the list of candidates who were given the benefit of BPL, Sl. No. 7 Sreya
Sekhar, serial No. 11 Sabin Raj S.S. and Serial No. 13 Danitha W.J. are entitled to be included in the SEBC category based on the basis of their
rank and if they were placed in the SEBC category, they will be ranked 7, 11 and 13 among the 13 candidates entitled for fee concession.
However, the second respondent included them in the BPL/Low income group and included respondents 4 and 5 in the SEBC category. The
annual income of respondents 4 and 5 is Rs. 4,42,356/- and Rs. 4,23,115/- respectively. According to petitioners, as per table which they have
prepared in paragraph 7, concession should have been ordered as follows:
As per the above table serial No. 1 & 2 in the BPL category are entitled to be placed as serial No. 7 & 11 in SEBC category based on their
ranking.
Consequently 11 & 12 will be removed from the list. Serial No. 13 in SEBC can be retained in BPL category by changing serial No. 3 in BPL
category to SEBC category. Since respondents 4 and 5 are having double the income of the petitioners were included in SEBC whereas the
petitioners who are entitled to be included in the low income category were excluded. This illegality happened only because serial No. 1 and 2
were included in BPL category who were entitled to be included in the SEBC category based on the ranking and their income.
Counter affidavits have been filed by respondents 4 and 5 and also by the second respondent.
We heard the leaned counsel for the petitioners and the party respondents besides the leaned Government Pleader.
Certain facts are not in dispute. The petitioners do not dispute the BPL status of the persons who have been included 7 in number in the BPL
category. Learned counsel for the petitioners also does not dispute the fact that the petitioners are not entitled to be categorised as BPL. The only
case set up is that the first two candidates, who were shown in the BPL list, are to be included in the SEBC list for which they are entitled and
consequently, the petitioners would find their place in the list of students entitled to fee concession belonging to BPL/low income group on the
strength of clause 6(a).
Argument of the learned counsel for the petitioners is that if the course suggested by the petitioners were adopted, it would subserve the very
object of the notification in so far as it relates to providing fee concession so that persons, who are genuinely entitled to fee concession, will be
given the benefit of the same. He would point out that many of the persons who are included in the list of students entitled to SEBC, fee
concessions are having family income far higher than that of the petitioners. Therefore, he would submit that the correct course to be adopted was
to include persons who are entitled to come in the SEBC first and then thereafter follow the instructions in Clause 6(a) and prepare the BPL
category. If that course were adopted, the petitioners having the next lower annual income would have found a place in the BPL/low income
group.
Per contra, the learned counsel for party respondents would contend that clause 6(a) deals with two categories. The first category is BPL
category. The petitioners do not challenge the BPL status of those who are selected under BPL category. If that be so, petitioners, who are not
coming under the BPL category, can have no complaint. Then in the preparation of list, candidates who are eligible for SEBC category, the
important criteria is rank. Therefore, candidates will be selected on the basis of their respective rank and that is precisely what is done by the
authorities and there is no scope for interference. Learned Government Pleader also would take the same stand.
In reply, the learned counsel for the petitioners would contend that Clause 6 (a) contemplates that if candidates of the BPL are not there, then
the candidates in the next lower income should be included in the BPL category. In that way, the petitioners should be entitled to enter in the BPL
category. In other words, the contention is that the persons included in the BPL category being entitled to be included in the SEBC category and
by their inclusion in the SEBC category, the place available in the BPL list can be filled up and should be filled up with the petitioners.
We are of the clear view that there is no merit in the contentions of the petitioners. There is no challenge to clause 6 and we are not called upon
to decide the constitutionality and legality of clause 6. Clause 6 begins with the directive to provide 14% of the candidates from among those
allotted by the Commissioner of Entrance Examination coming under the BPL families as per State Norms irrespective of rank. It is thereafter, no
doubt provided that if number of candidates belonging to the BPL categories as above are not available, the balance will have to be allowed fee
concession on the basis of those having lower family income irrespective of the rank or category. It is thereafter clause 6(a) says in addition that
26% of the candidates, who have SEBC status, will be allowed to pay tuition fee at Rs. 25,000/-. More importantly, as far as SEBC categories
are concerned, it is specifically declared that it is on the basis of rank. No doubt, clause 6(a) undoubtedly says that if in the SEBC list candidates
are not available, the candidates are to be selected from the general category on the basis of the income.
Therefore, the course which has been adopted in this case by the authority would appear to be that they have selected 7 (14%) students from
the 3rd respondent''s college who satisfied the BPL categorisation. If 7 BPL students are available and then if the authorities chose to give them the
fee concession under BPL category, sitting in Article 226, on a conspectus of the words used in clause 6(a), we may not be justified in categorising
it as illegal or otherwise vulnerable in judicial review. Of course, learned counsel for the petitioners suggested the method by which according to
them most deserving candidates will get justice. We must also not overlook that in the selection of BPL candidates against 14% category, clause
6(a) declares that irrespective of rank or category the list is prepared whereas under the SEBC category the rank is fixed as the criteria. Edifice of
the petitioner''s argument is based on the presumed vacancies in the BPL list which could arise, if authorities had shifted the BPL students into the
SEBC category. Such a course is not contemplated under Clause 6(a). When physically, the required percentage of BPL students are available,
then they have to be filled in the BPL category and then there is no question of fitting them into the SEBC category. If they cannot be fitted in the
SEBC category, they cannot arise vacancies in the BPL category in which case alone the petitioners can succeed. We are of the view that the
clause does not give room for accommodating the contention which has been advanced before us by the learned counsel for the petitioners. We
are of the view that the course adopted by the respondents is in keeping with the clause, i.e. Clause 6(a). No doubt, learned counsel for the
petitioners would contend that if sufficient number of SEBC categories are not available, then they will have to go to general category. We are not
called upon to consider such a situation. In such a situation, Clause 6(a) in that regard will apply. That is not the position disclosed by the facts in
this case. In this case, the sole question is whether there were enough BPL students available. Admittedly, there were BPL students available. They
have been fitted into the BPL category. As far as 13 candidates who have been given benefit in the SEBC list, the list is to be prepared in
accordance with the rank. Going by the rank, may be there are students, whose annual family income is more than that of the petitioners, but the
clause speaks only of rank. In such circumstance, the clause in question does not support the case of the petitioners. Consequently, the writ
petition is without merit and it is dismissed. Learned counsel for the petitioners then made a request that the petitioners may be given a month''s
time to remit the fees. We heard the learned counsel for the 3rd respondent - College. In the circumstances, we record the submission of the
learned counsel for the 3rd respondent College that the petitioners will be given a month''s time from today to remit the fees.