A division bench of the Kerala High Court recently upheld the decision of the Single Judge holding community-based reservation of 10 percent seats in plus one admissions of aided higher secondary schools run by managements, other than minorities and other backward classes communities, as unconstitutional.
The government in July decided to split the 30 percent management quota seats in aided higher secondary schools by reducing it to 20 percent and reserving the other 10 percent for students of the community to which the school management belongs. However, the decision was challenged by the schools which did not want to declare the community to which they belong. Quashing the community-based reservation, the single bench had ruled that the 10 percent seats would stand merged with open merit seats.
While the schools were aggrieved by the single bench's ruling wherein it said that 10 percent seats would become general seats and not return to the management quota, the government in appeal said the court should not have interfered with the decision to reserve the 10 percent seats for students of the community to which the management belongs.
The division bench of Justice Alexander Thomas and Justice Shoba Annamma Eapen said the 10% community quota reservation was simply a resurrection of what had been struck down by another Division Bench earlier in Akhila Kerala Dheevara Sabha & Anr. v. State of Kerala & Ors.
"We are of the firm view that the present 10% reservation quota in managements other than minority and backward class communities is nothing but old wine in a new bottle, and it is a mere resurrection of the very same quota, which was interfered with by the Division Bench and accepted by the State, since the issuance of G.O. dated 09.06.2003. We are not in a position to appreciate why the State Government has again resurrected the 10% community quota in the present cases", the bench observed.
On the question that the 10 percent community quota seats should be ordered to be converted as management quota seats instead of open merit seats, the court said it cannot exercise its power of judicial review to pass such an order.
"Though we have invoked the judicial review power to hold the 10% community quota seats as unconstitutional and invalid, it would be in total derogation of the elementary canons and principles of judicial review if we were to hold that we have the competence to order that the 10% community quota seats should necessarily be converted as management quota seats, and that too overruling the contra stand of the State that, if the Courts hold the 10% community quota seats to be invalid, then the said seats should be merged with open merit quota seats. The Constitutional Courts, exercising the powers of judicial review, should be extremely cautious and circumspect about the exercise of its powers ,in that regard," the court said.
The Court further said that it is for the competent authority of the State Government to ensure that a comprehensive Government Order is issued in the matter, free from unnecessary controversies, "so that there is clarity about the various sources and quotas of admissions well in advance before the end of April, 2023 or so, instead of waiting till the last minute, as has been done this year".
The resurrection and restoration of the community quota is what led to unnecessary confusions, said the court
The batch of writ appeals in the case arose out of the common judgement delivered by the Single Judge bench in a clutch of petitions on July 27.
The batch of petitions had been filed before the Single Judge by the managers of various aided higher secondary schools, impugning the government order dated July 7, issued by the the General Education Department, and the prospectus issued by the Directorate, with the approval of the Government, for regulating admission to plus one course to private aided higher secondary schools for the academic year, 2022-23.
The government order had stipulated that the norm that had been followed by higher secondary Schools run by managements, other than minorities and Socially and Educationally Backward Classes (SEBC), of allotting 30% of the total seats in plus two courses for management quota, would be altered - the management quota would only be 20% of the total seats and the 10% seats would be allotted to students of the community to which the management belongs, to be allotted strictly on the basis of inter se merit of such eligible students.
The government order also said that if no community is declared by the management for the above purpose, then the 10% community quota seats ought to be converted as general merit seats and the same would then be filled up through the Central Allotment Process (CAP).
Single Bench Decision
The Single Judge allowed the main plea of the petitioners and held that 10 percent community quota is not constitutionally valid. However, the court rejected the schools' second prayer that the 10 percent community quota seats be converted to the management quota seats, so as to enable them have the management quota of 30 percent.
The schools in appeal said that the Single Judge went wrong in rejecting the second prayer and argued that since the 10 percent community quota seats were held to be invalid, they should be converted as management quota seats.
On the one hand, the State argued that the 10 percent community quota seats ought not to have been struck down as constitutionally invalid, since it was allocated, not merely on the basis of religion, caste, community basis, but also on the "rational criteria" that the community concerned had endeavoured and spent their money and energies for establishing the school concerned it was in recognition of that endeavour of the community to which the management belongs that the quota was created.
The DB Decision
The Appellate Court in the instant case found that there are three categories of managements of aided higher secondary schools, whose admissions to plus two courses are regulated by the prospectus for the Academic Year 2022-23:
Managements run by minorities and SEBC/OBC communities;
Managements that have strong linkage with the specific community, based on religion and caste, but other than religious minorities and SEBCs;
Managements, other than minorities and SEBC communities, but run by individual managers, registered Societies, companies, trusts etc, who, according to them, are not in a position to identify any specific community to which the management belongs, due to various reasons.
The Court considered the following aspects in the judgment.
Validity of 10% Community Quota Reservation in Managements Other Than SEBC/OBC Communities
The Court noted that another Division Bench of the High Court in Akhila Kerala Dheevara Sabha & Anr. v. State of Kerala & Ors. had noted that while reservations are possible for SEBC and minority communities based on the provisions of the constitution; in other cases, it would be "very difficult to comprehend the concept of 'community to which the school belongs'. It had been conclusively decided by the Division Bench in that case that the reservation, on the criterion of community to which the school belongs to, would not stand scrutiny of law, the court said.
"We are of the firm view that the matter in issue is covered by the well considered verdict, rendered by the Division Bench of this Court on 06.12.2003 in O.P. No.18658/2000. We are merely concerned with managements other than minorities and backward class communities. Minority and backward class communities will get constitutional protection, in terms of Article 30 & Article 16(5) thereof, respectively. Moreover, there is no challenge to the separate community quota, given to students of minority community and backward class community in managements, run by those respective communities, now challenged in these proceedings," it said.
The court further said if at all a community can be easily identified, as observed by the Division Bench in the earlier decision, it could be mainly inclusive of forward communities.
"As of now, the only constitutional provision, for preferential treatment or reservation for forward community, would be only within the narrow band width of the Economically Weaker Section quota (EWS quota), as enshrined in Article 15(6) of the Constitution of India, in the case of educational institutions and Article 16(6) of the Constitution of India in the case of appointments to services and posts. The State authorities have no case that the present reservation of 10% community quota, for managements other than minorities and backward class communities, could be traced, for justification, to any provision in the Constitution, including that for EWS quota", it observed.
The Court thus held that the case of reservation by setting apart 10% community quota in managements, other than religious and backward class communities, would be violative of the provisions of the Constitution as per Article 14 as well as those of Article 15(1) & Article 29(2), and Rule 11 of Chapter VI of the Kerala Education Rules.
It further noted as per the statement made by the respondents in one of the writ petitions, the government order dated July 7 is only applicable to institutions which are founded and run for fulfilling the educational needs of the students "in the catchment area in general and that of the community or caste, in particular, in which the management belongs to."
"A perusal of the various Government Orders mentioned hereinabove would only show that what has been done is that the State has blandly stated that the reservation is on the criteria of the community to which the school/management belongs," the court said.
The court also said the reservation quota for admission, on the basis of religion, caste, community, etc., other than that which may have justification in terms of Article 15(4) or Article 30, in the case of SEBCs and minorities, as the case may be, or in the case of the Economically Weaker Sections, cannot be said to satisfy the test of reasonable classification and the such reservation would be plainly in violation of the prohibitions against discrimination mandated in Article 15(1), Article 29(2) of the Constitution of India.
Validity of Reduction of Management Quota Seats From 30% to 20%
On the second prayer against conversion of 10% community reservation into open merit quota seats, it was contended by the schools that reduction of management quota seats from 30 percent to 20 percent is a drastic change of the consistent policy of the State and that such policy decisions, especially in relation to a major policy change, ought to have been decided only by the Council of Ministers of the State Government, as per the prescriptions in the Rules of Business of the State Government, framed under Art.166 of the Constitution of India.
The court said in the absence of statutes, the State is fully competent to exercise its executive powers to stipulate or fix sources and quotas for admissions in educational institutions, including aided higher secondary schools and the very pith and substance of any such stipulation, regarding sources and quotas of admissions, would be exclusively within the province of policy.
"So, a reading of Ext.P4 G.O. dated 07.07.2022 would thus make it clear that the Government, in its prerogative power, has taken the stand that henceforth the management quota seats in such managements would be limited to 20%, as in the case of minority and backward classes managements. The above said stipulation in Ext.P4, regarding 20% management quota and 10% community quota, is, in essence, fixation of the sources and quotas of admissions in aided higher secondary schools in managements other than minorities and backward classes," it noted.
The Court also took note of the letter dated 24.06.2022 of the Director of General Education which indicated that the management quota seats were filled up by the managements, not strictly on the basis of merit, but on the basis of their discretion, from amongst the eligible candidates who had applied in the management quota, who fulfill the minimum eligibility conditions for admission.
"The stand of the State is that the abovesaid stand has been taken in public interest and in the interest of the student community, so as to ensure avoidance of dilution of merit, etc. We are not in a position to hold that the abovesaid aspects cannot be said to be in public interest," said the court.
The court also said the reduction in management quota was a policy prerogative which could not per se be said to be unreasonable or arbitrary in the Wednesbury sense.
On the argument that the decision should have been taken by the cabinet, the Court said
"If the … Constitutional functionaries, like the Minister (for General Education) and Chief Minister, have taken the view that the matter is one which does not involve any important change of law or practice, so as to forthwith warrant consideration and decision by the Council of Ministers, then the said opinion, taken by those Constitutional executive functionaries, cannot be the subject matter of judicial review and in other words, it may not be within the permissible parameters of judicial review to adjudge the issue as to whether the said decision of the Constitutional functionaries, not to then refer the matter to the Council of Ministers, but to place it for ratification later, is justiciable, within the judicial review".
Observing that constitutional courts, exercising the powers of judicial review, should be extremely cautious and circumspect about the exercise of its powers, the bench said since the fixation of sources and quotas of admission is solely within the policy purview of the State Government, the Court sitting in judicial review will be interfering with the policy powers of the State Government, if it accepts the contention that the 10 percent community quota seats will have to be merged with the management quota seats and not with the open merit quota seats.
"In other words, the inevitable fall-out of this is that we do not have any legal option, but to accept the considered stand of the State that, in the event of the 10% community quota seats being declared as invalid by this Court, then the said quota should necessarily be merged with the open merit quota seats. Hence, we are constrained to overrule the abovesaid pleas and contentions of the appellant-Managements as well."
Advocate Jestin Mathew appeared for the appellants in the petition W.P.(C) No. 22515/2022, that had been considered as the lead petition. The various other appellant managements were represented by Advocates K. Mohanan, V. A. Muhammed, M. Sajjad, K. Sandesh Raja, V. Madhusudhanan, M. Sreebhadran, K.T. Shyamkumar, Harish R. Menon, K.N. Abha, A.G. Prasanth, Oashin Lalan, Arun B. Varghese, Aiswarya V.S., T.T. Muhamood, A. Renjit, A. Mohammed Savad, T.R. Vishnu, V.E. Abdul Gafoor, Nazeer Huzain H., M.R. Anison, A. Meenakshi, P.A. Rinusa, K. Sudhinkumar, P. Mohandas, Bonny Benny, Vishnu Narayanan, V. Rajasekharan Nair, P.A. Jenzia, K.A. Manzoor Ali, K.P. Sudheer, Anjali Menon, K. Shibili Naha, A. Lowsy, Senior Advocate S. Sreekumar, and Advocate V. Vijulal. The Government authorities were represented by Special Government Pleader T.B. Hood.
Case Title: The Manager, Sree Vivekananda Higher Secondary School v. State of Kerala & Ors and Other Connected Cases