Eligibility Criteria In Prospectus Can Be Amended When There Is Discrimination Between Similarly Situated Candidates: Kerala High Court

The Kerala High Court recently considered the question as to whether pursuant to the publication of the final list of candidates in the service quota for Medical Officers, for admission to the Post Graduate Ayurveda courses 2022, one of the eligibility criteria mentioned in the prospectus could be changed. 

While the Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen took note of the precedents in Jayakumar E.K. v. Director of Education & Ors. (2003), Anushka Rengunthwar v. Union of India (2023), and other cases, to quip that a new claim could not be admitted in the prospectus before the last date of submitting applications for admission, since the prospectus settles the criteria and gives a level playing field for candidates, it however went on to observe, 

"Amendment to the prospectus stands totally in a different perspective when there is a hostile discrimination between or among different classes standing on the same footing. If the prospectus fixes an eligibility criteria which offends Article 14, it cannot be said it will hold good for everyone to participate in the same manner as provided under the prospectus without amendment. The right to challenge cannot be taken away merely because there is a timeline fixed in the prospectus". 

The Court therefore noted that when all similarly situated persons are not treated alike, the same would be open for challenge before the Constitutional Court, and such an injustice that has come to be cured, could not be termed as 'a change of eligibility criteria'. 

"If such arguments are sustained, that would amount to denial of the right to challenge such arbitrary clauses in the prospectus. No candidates can be denuded of fundamental rights on the ground that the prospectus sets a deadline. It is in that background that the present case has to be examined," the Court added. 

The present case pertains to admission to the Post Graduate courses in Ayurveda, which is being done through a two-tier process. At the first level, the candidates would have to clear the National Testing Agency (NTA) exam. The exam is conducted prior to the preparation of the prospectus. Subsequently, at the second level, they would also have to make an application in terms of the prospectus on Post Graduate courses in Ayurveda. It is noted that for the academic year 2022-23, NTA conducted the test on October 15, 2022, and published the result on November 9, 2022. The prospectus was thereafter released by the State Government on December 29, 2022. Applications for admission were subsequently invited on January 4, 2023, and the last date for submitting the completed applications was stated to be January 9, 2023. The provisional and final lists of service quota were published on January 18, 2023 and January 19, 2023 respectively.

However, soon after, the State government based on an interim order, dated January 25, 2023, in a petition filed by one Dr. Sivaprasad V., passed an order on the same day changing the upper age limit of the Medical Officer quota candidates, which resulted in recasting the list of the final service quota candidates, and the final list was eventually published on January 27, 2023. It is on being aggrieved by the same that two of the petitioners herein, namely, Dr. Seema Sebastian and Dr. Shyly Raju, approached the Court in the present writ petitions, alleging that they had been placed in lower ranks following the recasting of the list. 

It is the case of the petitioners that the Government could not have tinkered with the eligibility criteria for admission after the publication of the selection list, since it would affect the rights of others. It was also submitted that the eligibility criteria was prevalent in the past, as well, and had been unchallenged. It was argued that the case of the erstwhile petitioner, Dr. Sivaprasad, ought to have come up earlier, immediately after the publication of the prospectus and the delay involved in approaching the Court for challenging the prospectus after the publication of the selection list was fatal. 

The Court in this case ascertained that the reason for fixing the upper age limit of Medical Officer quota candidates was because the Government had overlooked the retirement age of officers appointed on or after the first day of April 2013, the date on which the National Pension Scheme was implemented in the State. The Court perused the relevant provision in the Prospectus and noted that the candidates ought to have at least 7 years of service left before the date of superannuation, and the upper age limit was also fixed at 50 years for the teachers' quota, having regard to the retirement age of teachers. It was observed that after three years of undertaking studies, a candidate ought to have minimum 7 years of service left to obtain admission under such a quota, since the candidates would be eligible for full salary during the period of 3 years of study.

It was also noted that before April 1, 2013, the age of retirement of the Medical Officer was 56 years. The Court thus discerned that now, there were two categories of Medical Officer quota employees in the State - those who entered into employment prior to April 1, 2013, and those who entered employment prior to or on the said date. 

The Court thus proceeded to state that was factored in fixing the upper age limit was the availability of the candidates in the department after the completion of the course for a period of seven years. 

"This being the factor, the Medical Officers’ age ought to have been reckoned at par with the age of teachers. Otherwise, it will discriminate between the employees who are retiring at the same age. Had it not been for the Government passing the order now under challenge by Dr.Seema Sebastian and Dr.Shyly S.Raju, this Court would have, in the writ petition filed by Dr.Sivaprasadan V., struck down the fixing of such age limit criteria as it would amount to discrimination. Therefore, it makes no difference that such a situation has been met by the order of the Government," it was observed. 

The Court was of the view that the paramount question that had to be considered herein was whether such an exercise could have been undertaken after finalisation of the list of selected candidates. 

On noting the retirement age of teachers and that of the Medical Officers enrolled under the National Pension Scheme after April 1, 2013, which is 60 years, the Court was of the view that there could not be any discrimination between the same class of employees who retire at the same age. The Court observed that the objective criterion herein for fixing the upper age limit was that there ought to be 7years of service left after the completion of the course, and added that the same rule ought to exist for all candidates in similar circumstances.

"Merely for the reason that the Government passed an order, that does not cease to be a correctional order to uphold the concept of ‘equality’ as enshrined under Article 14 of the Constitution. Therefore, we are of the considered view that the Government was justified in passing an order changing the eligibility criteria. It is to be noted that the Government acted on the basis of the orders of this Court as well as on the basis of the power reserved by the Government in the prospectus to amend the prospectus," the Court declared. 

The Court added that while the other candidates could object to such changes if any of their accrued rights were being divested pursuant to changing the eligibility criteria, it ought to be remembered that mere inclusion in the rank list would not confer any indefeasible right upon the candidates to claim admission in accordance with the original ranking. 

"Recasting a rank list would remove a patent injustice, which is an inevitable consequence of that process. It is not a case where candidates have been admitted to the programme and have started attending classes after the admission. No rights of the other candidates have now been taken away. Rearrangement of the rank may lower the prospects of getting admission. By inclusion in the select list, one is having only a legitimate expectation for consideration for admission and no right for admission has been crystallized by such inclusion. The legitimate expectation can be imperiled by a change of circumstances, an act of God or by judicial intervention," the Court reasoned. 

It also found that there were no laches on the part of the candidates who had raised their grievances before the Government. It therefore dismissed the petitions filed by the aggrieved candidates, and affirmed the order passed by the Government. 

Case Title: Dr. Shyly S. Raju v. State of Kerala & Ors. and other connected matters

Citation: 2023 LiveLaw (Ker) 202

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