AISWAYA S.DUTT v State of Kerala & The Commissioner for Entrance Examinations

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941** ## **WP(C).No.19798 of 2019** ## **PETITIONER:** **AISWAYA S.DUTT, AGED 19 YEARS D/O. SUNIL DUTT, T.C 27/698, VIJAYA NIVAS, AMBALATHUMUKKU, VANCHIYOOR P.O, THIRUVANANTHAPURAM 695 035** **BY ADVS. SRI.D.KISHORE SMT.MEERA GOPINATH SMT.MINI GOPINATH** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 2 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHINAGAR, THIRUVANANTHAPURAM - 695 001** **BY ADV. SRI.V.MANU, SENIOR GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.19798 of 2019 2 **CR** ## **JUDGMENT** Petitioner is a candidate applied for admission to the Kerala Engineering, Architecture and Medical Courses - 2019 governed by Ext.P7 prospectus, seeking to declare that petitioner is entitled to exercise her option in the 2[nd] phase of allotment to MBBS course in the NRI quota for admission to professional degree courses, 2019 and that the allotment of a college to the petitioner for Engineering course in the first phase of allotment is not a bar for exercising option to pursue MBBS course, as the said option was already exercised by the petitioner within the time stipulated in the prospectus, evident from Ext.P3 and for other related reliefs. Brief material facts for the disposal of the writ petition are as follows; 2. Petitioner has exercised her 1[st] and 2[nd] option for Engineering course and medical course respectively. Both the options were exercised on the same day as per clause 11.4.5 of the prospectus. Clause 11.4.5 of Ext.P7 permits a candidate to WP(C).No.19798 of 2019 3 register for options to different streams and the only restriction is that, all options to the eligible streams will have to be registered as per the schedule. Petitioner has also opted for Engineering course as well as MBBS course within the time limit prescribed as per the prospectus, evident from Ext.P3 option list. 3. According to the petitioner, she has chosen to opt Engineering as the first option since she was under the impression that, her rank in the NEET examination will not enable her to secure an admission for MBBS. The sum and substance of the contention advanced by the petitioner is that, Engineering course and the MBBS course are two different streams and as such there is no inhibition in permitting the petitioner to exercise her option for MBBS course in the 2[nd] phase. The 2[nd] phase of allotment commences from 12/7/2019 and now the same is extended to 25.7.2019. But when petitioner attempted to exercise her option for MBBS course, the web portal of the 2[nd] respondent would not permit her to apply for option in 2[nd] phase of allotment. The reasoning given by the 2[nd] WP(C).No.19798 of 2019 4 respondent is that, petitioner cannot be permitted to exercise her option in the 2[nd] phase as she was already allotted a college for the Engineering course in the first allotment. The prime contention of the petitioner is that, the said reasoning is illegal in view of the provisions contained under the Prospectus for KEAM - 2019. Even though petitioner has submitted Ext.P8 representation seeking permission to opt in the second phase, the same is not considered. These are the background facts projected by the petitioner in the writ petition. 4. A detailed statement is filed for and on behalf of the Commissioner of Entrance Examinations i.e., the 2[nd] respondent specifying that, the stand adopted by the Entrance Commissioner in respect of the option sought to be exercised by the petitioner in the second phase is fully justified in view of the provisions contained under the Prospectus. Learned Senior Government Pleader has taken me through the provisions of the KEAM Prospectus - 2019 and submitted that petitioner has not made out any case justifying interference of this court under Article 226 of the WP(C).No.19798 of 2019 5 Constitution of India, there being no arbitrariness, illegality or manifest injustice in the stand adopted by the 2[nd] respondent. 5. I have heard learned counsel for petitioner, Sri.D.Kishore, learned Senior Government Pleader, Sri.V.Manu and perused the pleadings and documents on record. 6. The sum and substance of the contention advanced by learned counsel for petitioner is that, as per the Prospectus, the stream for Engineering and the stream for MBBS are two different streams and therefore, merely because petitioner has exercised the option of Engineering as the first option, that will not prohibit the petitioner from opting for MBBS stream in the 2[nd] phase of allotment. Learned counsel for petitioner has invited my attention to clause 11 of Ext.P7, wherein it is stipulated that, the candidate should register options only to those courses/colleges which they are sure to join on allotment and if the candidate fails to remit fee/join the college, he/she will lose the options in the **stream** to which the allotment belongs and the options WP(C).No.19798 of 2019 6 once lost will not be available in the subsequent phases. When an allotment is given to a candidate, the previous allotments, if any, shall automatically be cancelled. So also clause 11.3(b) stipulates the courses for option registration under CAP are classified as Engineering stream, Medical stream and Pharmacy stream and that, all courses listed in clauses 1.3.1. and 1.3.2 are included in Engineering stream and all courses listed in clause 1.3.3, 1.3.4, 1.3.5 and 1.3.6 are included in Medical stream and as per sub-clause (c) thereunder, it is stipulated that, candidates are eligible to register option to the course of any stream or all streams provided they are qualified with a rank in the respective rank lists of KEAM - 2019 as per the conditions specified in clauses 5,6 and 9 of the KEAM-2019 Prospectus. As per clause 11.4.1 dealing with candidate registering options stipulates that candidates included in the rank lists for Engineering, Architecture, B.Pharm, MBBS/BDS/BHMS/BSMS/BUMS, Agriculture/ Veterinary / Forestry /Fisheries and Ayurveda courses 2019, will have to register their WP(C).No.19798 of 2019 7 options in the stream(s) concerned as prescribed under clause 11.5 for being considered for allotment to the courses and colleges under the respective stream(s). Therefore, according to the petitioner, in accordance with the provisions contained under the prospectus petitioner has exercised the option and since the options are received in accordance with the different streams provided under the prospectus for Engineering and MBBS, there is no inhibition standing in the way of petitioner exercising option for MBBS in the second phase of admission. So also it is contended that, as per clause 11.6.4(i), after each allotment, the options below the 'allotted one' of the candidate will alone be automatically removed from the option list of the candidate, and therefore, according to the petitioner, such course of action shall take place only, taking into account the options made by petitioner in two different streams as is contemplated under the relevant provisions of the prospectus discussed above 7. On the other hand learned Senior Government Pleader submitted that, the KEAM Prospectus - 2019 is WP(C).No.19798 of 2019 8 provided for the purpose of admission to Kerala Engineering, Architecture and Medical courses and the courses as shown in the prospectus are as follows; 1)Engineering 2) Architecture 3)MBBS 4)BDS 5)Ayurveda 6) Homeopathy 7) Sidha 8)Unani 9)Agriculture 10) Forestry 11)Veterinary 12)Fisheries 13)Pharmacy 8. As per clause 6 of the Information Bulletin of the Prospectus, candidates are entitled to submit only one online application for admission to any or all of the courses in KEAM - 2019. Clause 2 of the prospectus deals with course, institutions and seats. Clause 2.3 deals with Engineering courses. Clause 7 deals with the procedure to be followed to apply for the entrance examination/admission. Clause 7.3 deals with online submission of application, which stipulates, online submission of application through the website, www.cee.kerala.gov.in is required to apply for admission to all courses (MBBS, BDS, other Medical and allied courses, B.Pharm, Engineering and Architecture). Clause 11 deals with centralised allotment process (CAP) and online submission of WP(C).No.19798 of 2019 9 options, which stipulates that, centralised allotment process will be done through the Single Window System (SWS)to give allotments to various courses and colleges under the Engineering/Architecture/Pharmacy/Medical **streams** in the State, based on the options submitted by the candidates, who have included in the rank list of the Engineering/Architecture/B.Pharm/ MBBS & BDS/Medical & allied/Ayurveda courses for the year, 2019 prepared by the Commissioner for Entrance Examinations, Kerala. It further stipulates that, it is a stream of allotments through online submission of options; options are willingness of a candidate, who qualified with a rank in the rank lists of KEAM - 2019 to join a **course/college combination** prioritized as per his/her aspiration and desire subject to the conditions specified in clauses 6 and 9.7.5. 9. It is also pointed out thereunder that, the CAP through which the options are registered is a simple and transparent process of allotment to the professional degree courses and it gives the candidate opportunity to exercise his/her options for courses WP(C).No.19798 of 2019 10 and colleges of his/her choice conveniently in the order of his/her preference considering **all those available to be chosen from** . So also clause 7.3 (a) deals with fees for Engineering/ Architecture/ B.Pharm/ MBBS/ BDS/ Ayurveda/ Homoeo/ Sidha/Unani courses and fees for Agriculture and Forestry, Agricultural Engineering, Food Engineering & Technology courses under the Kerala Agriculture University, Fisheries and Food Technology courses under Kerala University, Fisheries and Ocean Studies, Veterinary & Animal Husbandry, Dairy Technology and Food Technology courses under the Kerala Veterinary and Animal Science University will be available for allotment by Commissioner for Entrance Examinations through CAP. 10. So also clause 11.5.4 deals with courses and colleges available for registering options, wherein it is mandated that, a list of course-college combinations available for allotment through the CAP will be displayed on the Option Registration page of the candidate based on the stream(s). Clause 11.5.5 deals with procedure for registering options in WP(C).No.19798 of 2019 11 his/her Option Registration page, which prescribes that, by entering the option number for a course/college combination, the candidate can fix his/her preference numbers for the course-college combination displayed in the above Registration page and here all the eligible options of the candidate will be displayed course wise and the candidate is expected to enter his/her preference number for a particular combination. Clause 11.5.6 deals with registering of the options and saving/revising the options registered, which stipulates, all eligible options of the candidate will be displayed on the Option Registration Page and candidate may follow the directions given therein to register the options. The data entered may be saved regularly by clicking 'Save' button, so that the data already entered is not lost due to unexpected reasons. The candidate should enter only those options in which he/she is interested. Candidates should also note that he/she will be considered for allotment only to those courses and colleges opted by him/her. So, a candidate, who has **-** not opted for a **course college combination** will not be WP(C).No.19798 of 2019 12 considered for allotment for that combination. Existing options, registered by a candidate and available in the Option Registration page, can be cancelled by entering the number '0' against that particular option to be cancelled or by clicking on the corresponding 'delete' button. Changes(including deletions) made in the option list must be saved (by clicking on the 'Save' button) before leaving the option registration page. All the valid options registered by the candidate will be processed. If a candidate get allotted to a particular seat, based on his/her option, he/she is bound to accept it, failing which, he/she will lose that allotment as well as all the existing options in the steam to which the allotment belongs. The options once lost will not be available in the subsequent phases. 11. Clause 11.5.9 relates to re-arranging option priority which prescribes that a candidate may change his/her option priority any number of times within the time schedule permitted. The priority of options registered at the time of closing of the facility for registering options alone will be considered for WP(C).No.19798 of 2019 13 processing. No candidate will be allowed to register **options afresh to any stream** at any stage after the stipulated time as notified by the Commissioner of Entrance Examinations. The option list once finalized cannot be augmented after the stipulated time for registering options. But the modification of the option list will be allowed only for cancellation/deletion and for re-arrangement of priority options at the time specified in the notification by the Commissioner of Entrance Examinations. Clause 11.6.4 (i) prescribes that after each allotment, the options below the “allotted one” of the candidate will automatically removed from the option list of the candidate and an example is cited thereto to the effect that, if a candidate have registered 45 options in all, if he/she is allotted his/her 34[th] option, all options from 35 to 45 will be removed from the option list. However, the 34[th] option is the allotted one and therefore, it will not be seen in the option list and options from 1 to 33 only will remain valid and will be considered for future allotments. These are the relevant provisions of the WP(C).No.19798 of 2019 14 prospectus to deal with the contentions raised by the petitioner. This question was considered by this court in **Fathima S.(Dr.) v. State of Kerala and others** [2018 KHC 366]in respect of Post Graduate admissions for the dental course and held that, provisions of prospectus are to be read harmoniously in order to decipher the exact rule position. I am of the considered opinion that, the proposition laid down thereunder strictly applies to the facts and circumstances of this case also. Therefore, on a harmonious reading of the provisions of the KEAM Prospectus - 2019, it is clear that, petitioner has not made out any case for interference with the stand adopted by the 2[nd] respondent. 12. On evaluating the situation taking into account the above discussed provisions, I am of the considered opinion that, petitioner has given the first option for Engineering, with a course-college combination and petitioner was allotted with the same, consequentially all the options below are deleted, and in the case specific, 2[nd] option made by the petitioner has vanished through the automatic process WP(C).No.19798 of 2019 15 discussed above and in terms of the prospectus. Even though petitioner has a case that since Engineering and MBBS are different streams, petitioner is entitled to opt for MBBS in the second phase of admission, such procedure is not contemplated as per the KEAM Prospectus - 2019 as is discussed above. So much so only a single application alone is provided as per the prospectus for submitting application for all the courses dealt with under the KEAM Prospectus - 2019. 13. In this regard it is also significant to note that, **the course** mentioned in the prospectus takes in Engineering, MBBS and other courses as a homogeneous group, and not in accordance with different streams as put forth by the petitioner. Therefore, the contention advanced by the learned counsel for petitioner that, petitioner is entitled to exercise the option for the 2[nd] phase of allotment for MBBS, cannot be sustained. Petitioner could not access the web portal of the Commissioner for Entrance Examinations since the lower options opted by the petitioner has vanished from the web portal in accordance with the provisions of clause 11.6.4(i) since the system was modulated accordingly. WP(C).No.19798 of 2019 16 Therefore, it cannot be said that, there was any arbitrary or illegal action on the part of the respondents declining access to the web portal to the petitioner, to exercise the option for MBBS for the second phase. It is also relevant to note that the provisions of the prospectus is the rule of the game, and the instructions are provided thereunder with clarity and precision enabling an applicant to submit the application online without any mistake and misunderstanding, and also citing an example in respect of the deletion process. Assimilating the legal and factual circumstances, it is clear, having participated in the process knowing fully well the features and characteristics of the system, petitioner is not at liberty to turn around and attack the provisions of the prospectus guiding the meticulous process to be undertaken by a candidate. Moreover any manner of interference in such matters without adequate reasons will lead to upsetting the systematic methodology adopted to complete the admission process. 14. In that view of the matter, I am of the firm and considered opinion that, petitioner has not made WP(C).No.19798 of 2019 17 out any case justifying interference of this court exercising the power of judicial review under Article 226 of the Constitution of India, since the authorities have acted only in accordance with the prescriptions contained under KEAM Prospectus - 2019. However, clause 11.6.9 dealing with spot allotment, stipulates that spot allotment/admission for fillingup of remaining vacancies, if any, will be conducted after completion of the centralized allotment process and all qualified candidates included in the rank list concerned is entitled to attend the spot allotment/admission process. However, the eligibility/claims of candidates to participate in spot allotment shall be in accordance with the conditions in the relevant Government Orders/orders of the courts/concerned Central Councils. Therefore, I am of the view, petitioner is entitled to participate in the spot allotment process, though petitioner is not entitled to participate in the second phase of allotment for MBBS course for the reasons specified above Upshot of the discussion is, the writ petition is WP(C).No.19798 of 2019 18 disposed of declining the first relief sought for, for participating in 2[nd] phase of allotment and leaving open the liberty of the petitioner to participate in the spot admission process. ## **Sd/-** ## **SHAJI P.CHALY** Smv 27.7.2019 **JUDGE** WP(C).No.19798 of 2019 19 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SCORE CARD OF THE PETITIONER NEET EXAMINATION DATED 5-6-2019** **EXHIBIT P2 TRUE COPY OF THE CANDIDATE'S DATA SHEET PERTAINING TO THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE OPTION LIST DATED 1-7-2019 PERTAINING TO THE PETITIONER** **EXHIBIT P4 TRUE COPY OF THE PROVISIONAL LIST OF NRI QUOTA DATED 3-7-2019 PUBLISHED BY THE 2ND RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF RS. 10,000/- MADE BY THE PETITIONER IN FAVOUR OF THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE LAST RANK DETAILS WITH RESPECT TO THE ADMISSION TO PROFESSIONAL DEGREE COURSES, 2019 EXHIBIT P7 TRUE COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS FOR ADMISSION TO PROFESSIONAL DEGREE COURSES 2019 EXHIBIT P8 TRUE COPY OF THE REQUEST DATED 15-07-2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.**