Mahin Noushad vs The Commissioner of Entrance Examinations

A. Muhamed Mustaque, J.—These writ petitions are filed by the candidates who have appeared for Kerala Entrance Examinations for Professional courses. The grievances of the petitioners are that even though they are entitled for the reservation, they have been denied reservation on account of the fact that certain candidates belonging to the respective community who otherwise would come under the open category have been considered as as reserved category candidates on account of the option exercised by them in relation to the reserved seats in the professional colleges.

In the writ petition 16452/2014 it was pointed out that there are 630 seats in open category for MBBS course. Certain candidates who belonged to Muslim community who will come within the 630 seats for open category are now placed in the reservation. The petitioner points out that this is on account of non preparation of separate list for open category and reserved category.

Similarly petitioner in 20630/2014 also raised a claim that certain candidates belongs to the Ezhava community also have been placed in the reserved category instead of open category. According to the petitioner, by the action of respondent, there are shortage of allotment of 23 candidates in the reserved category of Ezhava.

In this matter statement was filed by the Government. Since statement is not clear as to the offsetting of the allotment of certain reserved categories candidates, who by rank would have included in the open category, this Court as per order dated 16.9.2014 directed the Government to file a statement. Thereafter an additional affidavit was filed on 26.9.2014. In the additional statement it is stated that as per Government Order No. 122/98/H.Edn. dated 7.10.1998, Government ensured that reserved category candidates who would have come under the open merit list will be treated as open category for computing percentage of the reservation. It is categorically stated that no candidates who is otherwise entitled to get admission in open category has been allotted under the reserved category earmarked for Muslim and Eazhava quota. It is to be noted that earlier statement filed by the Government shows that certain candidates are included in the reserved category, even though they would have been otherwise considered as an open merit candidate considering the last rank in the open merit. The details of those candidates are found in Annexure R1(b). It is seen from Annexures R1(c) to R1(d) produced along with additional affidavit filed by the 1st respondent, these candidates have been treated as State Merit candidates.

According to the official respondents allotment of seats is in a phased manner. It is also stated that candidates having 539 to 630 under the Muslim quota are included in the reserved category is on account of the reason of allotment at that phase, they can only be treated as candidate coming under the reserved category based on the seats available at that time. However on account of R1(c) to R1(d) placed before this Court, this candidates have been considered as open category candidates. Therefore, there is no room for grievances for the petitioners.

In Union of India (UOI) and Another Vs. Satya Prakash and Others, it is held that "if a candidate of Schedule Caste, Scheduled Tribe and other backward class who has been recommended by the commission without resorting to the relaxed standards could not get his/her own preference in the merit list. He/She can opt a preference from the reserved category but while computing the quota/percentage of reservation he/she will be deemed to have been allotted a seat as an open category candidate (i.e. on merit) and not as a reserved category candidate recommended by the commission by resorting to the relaxed standard. Simply because she opted a preference from the reserved category would not exhaust the quota of OBC category candidate selected under the relaxed standard."

In R.K. Sabharwal and others Vs. State of Punjab and others, it is held that "when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts"

In view of the decision, it is crystal clear that if candidates otherwise would have been eligible under the open category, merely for the reason that he has exercised an option from the seats earmarked for the reserved category, the candidate will be deemed to have been allotted a seat only as an open category candidate and not as a reserved category candidate while computing the total percentage of reservation. It is admitted that total number of seats available in State Medical Colleges in Self Financing colleges is 1015 in Phase 1 and Phase 2. Therefore, based on the Satya Prakash Case (supra) the candidates who have been included in the reserved category while calculating total number of seats available in merit quota, in second phase ought to be reckoned as open category candidates so as to offset loss made to the reserved category on account of treating open category candidates as reserved category. It cannot for a moment ignore that reservation is based on a percentage and total number of seats shall be the basis for calculating the percentage. In that process, whether admissions are made in a phased manner or not is not relevant. The percentage of reservation cannot be undermined, thus if any candidates based on last rank allotted in the merit list, would have to find a place in the open category have been included as reserved category on account of option exercised in the first phase should only figure in the open category and not in the reserved category. In the light of affirmations in the additional affidavit and also details furnished before this Court, I do not find that these petitioners are entitled to any reliefs. Accordingly reliefs are declined.

Hence, I am of the view that Commissioner for Entrance Examinations shall publish the list of candidates who are initially shown in the reserved category and later converted as open category considering the last rank allotted in the open category. This will create transparency and fairness in the procedure adopted by the Commissioner for Entrance Examinations. Therefore, in every entrance examination, the list of such candidates shall be published by the Commissioner for Entrance Examinations in the website showing the details of the candidates who are subsequently treated as open category candidates though they were initially shown as reserved category at the time of granting admission.

With the above directions, these writ petitions are disposed of.