Akshima S.S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942** ## **WP(C).No.22706 OF 2020(K)** ## **PETITIONER:** **AKSHIMA S.S. AGED 20 YEARS D/O. M. SURESH, THIRUVONAM HOUSE, MELEPATHIYANADU MULLASSERY, KARAKULAM P.O., NEDUMANGADU TALUK, THIRUVANANTHAPURAM 695 564.** **BY ADVS. SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SHRI.PRAVEEN S. SHRI.SUNIL KUMAR A.G SRI.DIPU JAMES SHRI.MATHEW K.T. SHRI.GEORGE K.V.** ## **RESPONDENTS:** - **1 STATE OF KERALA REP. BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE, OF MEDICAL EDUCATION, NEAR GENERAL HOSPITAL, THIRUVANANTHAPURAM 695 001.** - **3 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001.** - **4 THE VILLAGE OFFICER, VILLAGE OFFICE, KARAKULAM, NEDUMANGADU TALUK, THIRUVANANTHAPURAM 695 564.** ## **SRI.V.MANU, SR.GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.22706/2020 2 ## **JUDGMENT** **Dated this the 22nd day of October 2020** The petitioner applied for appearing in the Entrance Examinations of Kerala Engineering/ Pharmacy/ Architecture/ Medical and Medical Allied Courses (KEAM) 2020 as well as National Eligibility and Entrance Test (Undergraduate) [NEET UG] 2020 for admission to undergraduate courses in medical and allied subjects. She belongs to Viswakarma community, which is a socially and educationally backward community (SEBC) eligible for reservation. She got Exhibit P1 Non-Creamy Layer certificate issued by the Tahsildar on 03.12.2019, based on which Exhibit P2 admit card was issued to her for appearing in the NEET (UG) examination held on 13.09.2020. Along with Exhibit P3 application for appearing in KEAM 2020, she uploaded Exhibit P4 Non-Creamy Layer certificate issued by the Tahsildar on 04.02.2020, which is for employment purpose. The confirmation page Exhibit P5 downloaded from the website of KEAM, shows that she claimed for reservation for SEBC. The petitioner submits that she noticed her community status in W.P.(C) No.22706/2020 3 Exhibit P6 profile which was shown as General only on 27.9.2020. Immediately thereupon she obtained Exhibit P7 NonCreamy Layer certificate for educational purpose from the Village Officer - the fourth respondent on 28.09.2020. It is stated that as per Exhibit P8, her score is 566 in the NEET UG. The petitioner, therefore, seeks a direction to the respondents to permit her to substitute Exhibit P4 Non-Creamy Layer certificate with Exhibit P7 certificate. 2. Sri.V.Manu, the learned Senior Government Pleader, on instructions, explained the entire procedure followed by the Commissioner for Entrance Examinations starting from 07.11.2019 till date. It is stated that the Commissioner for Entrance Examination had as per notification dated 07.11.2019 announced the schedule of entrance examination for KEAM 2020. It was followed by another notification issued on 26.11.2019 informing all concerned that the proceedings for submission of application for KEAM 2020 would commence in January 2020 and in order to avail benefits of category/reservation all eligible candidates should upload W.P.(C) No.22706/2020 4 relevant category certificates along with their Online application form. Another notification was issued on 23.12.2019 again informing the candidates that they should get themselves ready with all the certificates in advance for uploading the same along with their online application, specifically stating that the certificates that would be uploaded along with the online application, alone would be accepted. Applications were invited for KEAM by notification issued on 31.01.2020 specifically providing in Clause 6 that the candidates have to upload their photograph, all the documents and eligibility certificates, certificates in proof of the date of birth, nativity, reservation, etc., on or before 29.02.2020 at 05.00 p.m. It is stated that the KEAM prospectus was approved by the Government on 31.01.2020 and uploaded in the website on 02.02.2020 which contains a specific provision in Note(i) of Clause 5 to the effect that claims for Special/Mandatory reservation should be made by a candidate in the online application itself and supporting documents shall be uploaded to the online application within the stipulated time, specifically stating that claims made after the W.P.(C) No.22706/2020 5 submission of online application will not be entertained and even if supporting evidences are produced the claims for special and mandatory reservation once made in the application cannot be altered by the candidate under any circumstances. Clause 5.4.2 (a) and (b) thereof specifically provided that candidates belonging to socially and economically backward classes (SEBC) should upload to the online application a certificate to the extent that the candidate belongs to the community which is designated as SEBC and does not belong to the category of creamy layer, in the proforma given as Annexure V of the G.O. (P) No. 1/2015/BCDD dated 01.01.2015. It is stated that the communities which are included in SEBC are given in Annexure xi of the prospectus. _**Sub clause (b) of 5.4.2 provided that candidates belonging to Ezhava, Muslim, other backward Hindu, Latin catholic and Anglo Indian, Dheevara and related communities, other backward Christians and Kudumbi communities claiming reservation under SEBC quota should invariably upload the non-creamy layer certificate in the prescribed format for State government**_ W.P.(C) No.22706/2020 6 _**Education purpose obtained from the Village Officer concerned.**_ Another press release was issued on 15.02.2020 alerting the candidates about the last date for submission of applications. By notification dated 24.02.2020, the last date was extended till 29.02.2020. A press release was issued on 28.02.2020 informing that there will not be any further extension. The petitioner in all these cases has submitted her application well before 29.02.2020. Again on 11.05.2020, the Commissioner issued another notification requesting the candidates to verify their profile and rectify the defects and to submit the requests for rectification before 05.00 p.m., on 25.05.2020. On 16.05.2020, individual memos were issued to candidates in their profile pages to cure the defects. The KEAM entrance examination was held on 16.07.2020. On 28.07.2020, another notification was issued informing the candidates that they can view their profiles and check the details of their claim for reservation status and other benefits in their profile and that they can view defects if any in their online applications by clicking the menu item “Memo details” provided in the profile W.P.(C) No.22706/2020 7 page. The candidates who submitted defective certificates for EWS quota and NRI quota seats also can rectify the defects by submitting corrected certificates in time. However as per notification dated 18.08.2020, another opportunity was given to the candidates till 27.08.2020 to cure the defects in the certificates or documents, stating this time also that no further time would be given. It was followed by another notification issued on 07.09.2020 again granting time to candidates till 10.09.2020 asking them to verify their profile and to rectify defects, if any, in the photograph, signature, fee, documents/certificates, etc., uploaded along with their applications, alerting them that defects which would be cleared within the specified time alone would be considered for allotting any claim/reservation and that further opportunity would not be given for rectification. The KEAM Scores were published on 09.09.2020 and the rank list for admission to Engineering and Pharmacy courses were published on 24.09.2020. Again in notification dated 24.09.2020, one more opportunity was given to the candidates as a last chance, stating that requests were W.P.(C) No.22706/2020 8 received from several candidates who uploaded defective certificates. Candidates were asked to view their profile in the portal and to rectify the defects from 25.09.2020 to 28.09.2020 again stating that it would be the last chance. It is stated that the activities relating to central allotment process to Professional Degree Courses for the year 2020-21 commenced on 30.09.2020 inviting online options for Engineering and Pharmacy courses. The provisional category wise list of candidates who applied for admission to Engineering and Pharmacy courses and who were allowed with eligible communal reservation/special reservation/reservation under persons with disability was published on 01.10.2020 and final category list was published on 03.10.2020 on which day trial allotment was also made. It is stated that the first phase of allotment commenced on 07.10.2020. The rank list for Architecture course was published on 11.10.2020; category-wise list of candidates for admission to the said course, allowed with reservation was published on 11.10.2020. Options were invited for second round of allotment to Engineering and Pharmacy courses on 12.10.2020. The W.P.(C) No.22706/2020 9 NEET results were declared on 16.10.2020. It is stated that Kerala medical rank list would be finalised as soon as the NEET mark list is provided by the National Testing Agency. 3. It was also pointed out that each time when opportunities were given to the candidates to cure the defects, they were given intimation by sending individual SMS in the mobile phone numbers given by them, apart from the individual memo issued in their profile pages on 16.05.2020 asking them to cure defects. It is stated that there are 1362 candidates claiming reservation as members of Viswakarma community between rank Nos.84 and 53116 in the category list for Engineering and 1139 candidates between rank numbers 30 and 46291 in the category list of Pharmacy. The learned Government Pleader points out that petitioner did not avail the opportunities which were available to her from 07.11.2019 onwards till 28.09.2020 for producing the relevant documents. 4. The learned Senior Government Pleader, relying on the judgments dated 14.08.2020 and 14.09.2020 in W.A.No.1080/2020 and W.A.No. 1183/2020 respectively and the W.P.(C) No.22706/2020 10 judgment dated 12.08.2020 in W.P.(C).No.16518/2020, judgment dated 23.9.2020 in W.P.(C) No. 17368/2020, 18910/2020; judgment dated 25.09.2020 in W.P.(C) No. 16432/2020, judgment dated 06.10.2020 in 20844/2020, etc argued that petitioners cannot be granted any relief. The learned Government Pleader also relied on the judgments in _**Sainulabdin vs. State of Kerala : 1995 KHC 362**_ and _**Simi Raj V Commissioner for Entrance Examinations: 1999 KHC 669**_ where this Court has rejected similar claims in the light of the specific provisions in the prospectus. 5. I have considered the rival contentions raised on either side. Admittedly the petitioner has not produced the certificate as required in clause 5.4.2(a) and (b) of the prospectus which was published on 02.02.2020, where it was specifically stated that the certificate as required in Annexure V of the G.O.(P) No.1/2015/BCDD dated 19.01.2015 shall be uploaded and that they should invariably upload the non-creamy layer certificate in the prescribed format for State Government Education purpose obtained from the Village Officer concerned. W.P.(C) No.22706/2020 11 As rightly pointed out by Sri. V. Manu the learned Senior Government Pleader innumerable opportunities were given to the candidates to cure the defects till 28.09.2020. It is seen that petitioner was not at all vigilant even after sms sent to her mobile number and individual defect memo issued in her profile apart from the notifications issued from time to time between 07.11.2019 and 24.02.2020 when opportunities were provided on multiple occasions each time alerting that no further opportunity would be given. A further opportunity cannot be directed to be given to the candidates by this court. Those who apply for professional degree courses should be vigilant enough to submit their applications along with the requisite documents as required in the prospectus. It is pertinent to note that the candidates are submitting a declaration along with their application (as seen from the confirmation page), to the effect that they have downloaded and read various clauses in the prospectus, agreeing to abide by them. In case the petitioner had read and understood the provisions in the prospectus properly she would have submitted the relevant certificates W.P.(C) No.22706/2020 12 along with the application itself or would have got it cleared when opportunities were given further. 6. Moreover similar claims of candidates who did not upload the requisite documents at the relevant time were rejected by the Division Bench, after elaborately considering the procedure adopted by the Commissioner for Entrance Examinations and with reference to the case law on the subject in the judgments in W.A.No.1080/2020 and W.A.No.1183/2020 respectively and in a series of subsequent judgments. In the judgments in W.P.(C) Nos.16518/2020, 17368/2020 and 20844/2020, etc also similar claims were rejected. 7. In the judgment in _**Simi Raj V Commissioner for Entrance Examinations: 1999 KHC 669**_ relied on by the learned Government Pleader, a Division Bench of this court, considered a similar provision contained in the prospectus and it was held that the requirement to produce the community certificate along with the application form is a mandatory requirement in view of the categorical statements in the Prospectus as well as in the application form. W.P.(C) No.22706/2020 13 8. It is also pertinent to note that in the judgment in _**Sainulabdin vs. State of Kerala : 1995 KHC 362**_ , relied on by the learned Government Pleader, the Division Bench of this Court has held that failure to submit the income certificate in the form prescribed for that purpose, as provided in the prospectus, along with the application would render the application defective and the candidate cannot seek a remedy on the strength of such a detective application under Article 226 of the Constitution. In the light of the judgment also petitioners cannot be granted any relief. 9. I have already considered and rejected similar claims raised by candidates in identical circumstances, where the candidates failed to produce the relevant certificates even by judgment dated 21.10.2020 in W.P.(C) No. 21657/2020. Therefore, I find that petitioner also does not deserve any relief in this writ petition. Accordingly, this writ petition is dismissed. **Sd/-** ## **P.V.ASHA, JUDGE** **csl** W.P.(C) No.22706/2020 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXT.P1 : COPY OF NON-CREAMY LAYER CERTIFICATE NO.44564437 DATED 3.12.2019 ISSUED BY TAHSILDAR, NEDUMANGAD TALUK** - **EXT.P2: COPY OF ADMIT CARD - PROVISIONAL ISSUED BY NTA FOR EXAMINATION DATED 13.9.2020.** - **EXT.P3: COPY OF RELEVANT PAGES OF KEAM PROSPECTUS 2020 DATED 30.1.2020 ISSUED BY THE THIRD RESPONDENT.** - **EXT.P4: COPY OF NON-CREAMY LAYER CERTIFICATE DATED 4.2.2020 ISSUED BY THE FOURTH RESPONDENT.** - **EXT.P5: COPY OF CONFIRMATION PAGE WITH APPLICATION NO.1119311 DATED 4.2.2020 ISSUED BY THE 3RD RESPONDENT.** - **EXT.P6: COPY OF PROFILE DOWNLOADED FROM WEBSITE OF 3RD RESPONDENT BY PETITIONER ON 27.9.2020** - **EXT.P7: COPY OF NON-CREAMY LAYER CERTIFICATE NO.50572167 DATED 28.9.2020 ISSUED BY THE FOURTH RESPONDENT.** - **EXT.P8: COPY OF SCORE CARD OBTAINED FROM THE WEBSITE OF NTA FOR NEET (UG) 2020 ON 16.10.2020.**