Cisly Grashious v. State of Kerala and others

W.A.No. 1524/2020 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942 ## WA.No.1524 OF 2020 ORDER DATED 23.11.2020 IN WP(C) 25637/2020(D) OF HIGH COURT OF KERALA ## APPELLANT/PETITIONER: CISLY GRASHIOUS, AGED 60 YEARS, W/O. GRASHIOUS KURIAKOSE, NAMBIAPARAMBIL HOUSE, SHENOY ROAD, COCHIN 682 017. BY ADVS. SRI.V.V.NANDAGOPAL NAMBIAR SRI.GEORGE MATHEWS SRI.PRANOY K.KOTTARAM ## RESPONDENTS/RESPONDENTS 1-3: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 695 001. - 2 THE COMMISSIONER FOR ENTRANCE EXAMINATONS, 5TH FLOOR, HOUSING BOARD BUILDING, SHANTI NAGAR, THIRUVANANTHAPURAM 695 001. - 3 THE PRINCIPAL GOVERNMENT LAW COLLEGE, PARK AVENUE ROAD, ERNAKULAM 682 011. SRI. GRASHIOUS KURIAKOSE(SR) FOR APPELLANT, SRI.ARAVIND KUMAR BABU, SR GP FOR R1 AND R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No. 1524/2020 : 2 : ## **JUDGMENT** ## **SHAJI P. CHALY, J.** The captioned writ appeal is filed by the writ petitioner challenging the judgment of the learned single Judge dated 23.11.2020 in W.P.(C) No. 25637 of 2020, whereby the following reliefs sought for in the writ petition were declined. 1. Declare that the petitioner is entitled to be considered for admission in 3 year LLB course in the 3[rd] respondent College in the additional 10% seat allowed pursuant to Ext. P4 resolution of the Bar Council of India and based on Ext. P7 rank list published by the 3[rd] respondent. 2. Issue a writ of certiorari or any other appropriate writ or direction calling for the original or Ext.P9 communication and to quash the stipulation therein by which admission is restricted to students who have not already obtained admission; 3. Issue a writ of mandamus to the 2[nd] and 3[rd] respondents to admit the petitioner for 3 year LLB course in the 3[rd] respondent College following Ext. P7 rank list. 2. Brief material facts for the disposal of the writ appeal discernible from the memorandum are as follows: The appellant was eligible to secure admission for Three Year LLB Course 2020-2021 and accordingly, she submitted an application for the same, pursuant to the notification issued by the Commissioner of Entrance Examinations,Thiruvananthapurm, the 2nd respondent. W.A.No. 1524/2020 : 3 : The appellant obtained rank No.245 in the list of candidates eligible for admission, prepared by the Commissioner of Entrance Examinations. The appellant has given the Government Law College, Ernakulam as the first choice for admission along with other options. But, in the process of admission, she was allotted to Sree Narayana Law College, Poothotta on the basis of her ranking and she joined in the said college. 3. The case put forth by the appellant in the writ petition was that considering the difficulties arising from the pandemic situation, due to the outbreak of Covid-19, the Bar Council of India resolved to grant 10% additional seats for LLB courses in the Law Colleges in the State of Kerala as a one-time measure as per the decision of the Council dated 23-09-2020 and accordingly, communicated all concerned as per Ext.P4 letter dated 25-09-2020. The Principal, Law College, Ernakulam applied to the Bar Council of India for allotment of additional seats. While the continuation of the process was pending before the University and the State Government, the Commissioner of Entrance Examinations went ahead with the admission process and accordingly, issued a notification dated 17.10.2020 in respect of the on-line mop up allotment for Three Year LLB course 2020-21. She, accordingly, attended the spot admission held on 27.10.2020 before W.A.No. 1524/2020 : 4 : the principal Government Law College, Ernakulam in accordance with the conditions laid down in Ext.P6 communication issued by the Commissioner for Entrance Examinations dated 27.10.2020. The appellant was ranked 5[th] in the rank list. The person shown as serial No.1 was given admission on 27.10.2020 and according to the appellant, remaining persons were told that they will be considered for admission in future against the available vacancies. Anyhow, later by Ext. P9 notification dated 16.11.2020, the Commissioner of Entrance Examinations informed the Principal of Law Colleges regarding filling up of the 10% additional seats permitted by the Bar Council by spot admission. However, Ext. P9 contained a stipulation that those who are included in the rank list published by the Commissioner for Entrance Examinations and those students who have not yet obtained admission so far alone shall be given admission to the additional seats. Therefore, the crux of the challenge made by the appellant was that, the said condition is illegal and unjustifiable, since less meritorious students than the appellant would secure seats, and that the condition so imposed interfered with the Ext. P7 list prepared by principal of the Government Law College Ernakulam as per the order of the commissioner dated 17-10-2020 for spot admission . 4. According to the appellant, the Commissioner for Entrance W.A.No. 1524/2020 : 5 : Examinations ought to have directed the Principal of the Government Law College, Ernakulam to exhaust Ext. P7 rank list prepared pursuant to the communication issued by the Commissioner of Entrance Examinations dated 27.10.2020 incorporating the conditions for the spot admission before resorting to the further spot admission on the basis of new directions imposing fresh conditions. It is also the case of the appellant that since the spot admission exercise held on 27.10.2020 was intended for filling up all future vacancies, there is no justification for excluding the candidates like the appellant who have secured admission to self-financing Colleges from being considered for filling up the additional seats. 5. The learned single Judge, after taking into account the essence of the contentions so advanced, has dismissed the writ petition holding as follows: “3. According to the petitioners there is already a rank list(Ext.P7 in W.P.C.No.25637/2020) for the spot admission conducted on 27.10.2020 and therefore only after exhausting that list the Principals shall make further admissions. It is their contention that the merit will be sacrificed in case only those who are not given admission so far are admitted. The learned counsel also pointed out that spot admission cannot be conducted against the additionally sanctioned seats unlike the seats which remained vacant after conducting W.A.No. 1524/2020 : 6 : ## allotment in the regular process. 4. According to the learned Government Pleader, a decision has been taken not to permit those who already got admission in order to see that there is a finality in the process of admission. In case those who already got admission are allowed to participate and they are admitted, the seats which are presently occupied by them would have again to be filled up and the process would go on. Relying on the judgment in Arvind Kumar Kankane v. State of U.P. and others : 2001 (8) SCC 355 = 2001 KHC 1650 and judgment in WP(C) No.35202 of 2018 and the Division Bench judgment of this Court in W.A.No.2230 of 2018, affirming the same, Smt.B.Vinita,learned Government Pleader argued that there is no illegality in fixing the condition. In the judgment in Arvind Kumar Kankane vs. State of U.P. and others the apex court, while considering the validity of similar condition contained in an order issued by Government, held as follows: 4. We have carefully examined the contentions put forth before the High Court and before us and we are of the view that the finding recorded by the Division bench and Delhi High Court in Dr.Veena Gupta's case (AIR 1994 Delhi 108 (supra) and the High Court of Punjab and Haryana in Anil Jain's case (1198 (3) ESC 2016) (supra) is in accordance with the reason and stands the test of rationality. It is clear that once an option is exercised by a candidate on the basis of which he is allotted the subject and thereafter that candidate is allowed to participate in subsequent counseling and his seat becomes vacant, the process of counseling will be endless and, as apprehended by the High Court, it may not be possible to complete the academic course within the stipulated period. 5. The grievance made is that if a choice subject like surgery and medicine is given up by a candidate and that seat becomes vacant it may go to a candidate who is lower in rank in the merit list. This is W.A.No. 1524/2020 : 7 : only a fortuitous circumstance dependent on so many contingencies like the student, who has been allotted a seat in medicine, giving up the said seat and that seat falling vacant and thereafter the same is allotted to a candidate who is lower in rank in the merit list. Such freak circumstances cannot be the test of reasonableness of the rule. In the judgment of the Division Bench of this court in W.A.No.2230 of 2018 a similar issue was considered and it was held as follows: 3. The learned Single Judge took note of the relevant clause in Ext.P3 notification and found that, the mere fact that few seats fell vacant during the spot allotment process on account of the release of seats from other quotas could not be a ground to hold that the interdiction in Ext.P3 with regard to the transfer from one Law College to another Law College was unreasonable. While arriving at such a conclusion, the learned Single Judge took note of the decisions of the Supreme Court in Arvind Kumar Kankane vs. State of U.P. and others (2001 KHC 1650) to opine that even under circumstances where a seat becomes vacant after the allotments are complete, and is filled up by a candidate who is lower in rank in the merit list, the same can be treated only as a fortuitous circumstance and that cannot be a test for examining the reasonableness of the rule. 4. xxxxxxxxxx We are at a loss to understand how Ext.P3 notification can govern the allotment done in the case of the petitioner. The petitioner being a candidate, who secured allotment to the Government Law College, Trivandrum in the regular online allotment process, had her right to admission recognized through her allotment to the Government Law College in Trivandrum. Although she could have opted for the Government Law College, Ernakulam, which was her preferred choice of Government Law Colleges in the state, on account of there being no vacancy during the online allotment process, the petitioner could not join the said college. Spot allotment is a procedure prescribed to fill up vacancies that remain after the completion of the regular online allotment process. It is to govern such allotments that Ext.P3 guidelines were notified. While the petitioner is not a person, who would be governed by Ext.P3 notification, we note that there is a rationale for the differential treatment accorded to students who have already obtained admission in a Government Law College/Self Financing Law College when they choose a transfer to a Self Financing Law College/Government Law College. The said migrations, if opted for, would inevitably entail a W.A.No. 1524/2020 : 8 : change in the fee structure based on the choice of college opted by the student. The same cannot be said of persons who have been allotted to a Government Law College when they choose to opt for another Government Law College, since there is no change in the fee structure, and the preference for another Government Law College is purely a subjective one, not based on any objective criteria, as all the Government Law Colleges are at par in respect of educational standards. We, therefore, see no reason to interfere with the impugned judgment of the learned single Judge and dismiss this Writ Appeal. ## emphasis supplied) 5. Though the learned Senior Counsel as well as the learned counsel appearing for the petitioners in both the Writ Petitions vehemently argued that the admission has to be made from Ext.P7 rank list, I am of the view that the said rank list prepared for spot admissions ceased to exist on the spot when admissions were over and it cannot be said that it has to be operated in a subsequent process for which orders were issued only on 16.10.2020 and thereafter. Though the learned Counsel for the petitioners argued that as per clause 16 of the prospectus, all candidates included in the rank list are entitled to attend the spot admission, it is seen that the very same clause provides that Commissioner for Entrance Examination is empowered to issue orders on that behalf and Ext.P16 is such an order. In the light of the judgment of the apex court as well as judgment of the Division Bench, it cannot be said that the decision taken by the Commissioner for Entrance Examination that the additional seats as well as vacancies shall be filled up only from among those who did not get admission, suffers from any illegality. Therefore I dismiss these Writ Petitions.” ## 6. We have heard learned Senior counsel for the appellant Sri. W.A.No. 1524/2020 : 9 : Grashious Kuriakose assisted by Adv. V.V. Nandagopal Nambiar and the learned Senior Government Pleader Sri. Aravind Kumar Babu for the State and its officials, and perused the pleadings and materials on record. 7. The sole question emerges for consideration is whether any interference is warranted to the judgment of the learned single Judge. 8. The discussion of facts made above would make it clear that the contentions raised by the learned Senior counsel for the appellant are two fold in nature: (1) the stipulations contained in Ext. P9 communication issued by the Commissioner of Entrance Examinations dated 16.11.2020 that only those who are included in the rank list published by the Commissioner of Entrance Examinations and those students who have not yet obtained admission so far alone shall be considered for spot admission is arbitrary and illegal being an action paving way for less meritorious students overlooking the merit and seniority in rank of the appellant; and (2) as per the notification of the Commissioner of Entrance Examinations dated 27.10.2020 produced as Ext.P6 in the writ petition, a list was drawn up by the Principal of the Government Law College, Ernakulam from which only one person got admission and therefore, according to the appellant, W.A.No. 1524/2020 : 10 : the list so drawn up continues to be in force, and the direction issued by the Commissioner as per letter dated 16-11-2020 to conduct the spot admission with a new set of rules cannot be sustained under law. 9. In our considered opinion, the Commissioner for Entrance Examinations have issued the communication dated 16.11.2020 on the basis of additional 10% seats permitted by the Bar Council of India and the consequential Government Order bearing No. G.O.(P) No. 1394/2020 dated 06.11.2020. It is also quite clear and evident from Ext. P9 communication of the Commissioner for Entrance Examinations that the said procedure was drawn so as to have a transparent admission process in regard to the additional 10% seats allowed by the Bar Council of India and for which spot admission can be conducted by the Law Colleges after obtaining approval from the University and also an order from the Government . 10. It is true, the approval was secured by the Government Law College for filling up the additional 10% seats so allotted. Fact remains, the notification dated 27.10.2020 was issued by the Commissioner for Entrance Examinations solely for the purpose of filling up the existing vacancies in the Law Colleges then and the process was done in accordance with seat matrix available at that W.A.No. 1524/2020 : 11 : point of time, and it was accordingly, that the Ext.P7 list was drawn up by the Principal of Government Law College, Ernakulam. 11. In our considered opinion, the learned single Judge adjudicated the said issue and has arrived at the conclusion that the said list drawn up has nothing to do with the additional 10% seats allotted by the Bar Council. We are also of the considered opinion that 10% seats sought to be filled up by the spot admission is on account of the permission granted by the Bar Council of India and consequential orders issued by the State Government and the University concerned. Therefore, in our view, nothing stood in the way of the Commissioner to issue directions so as to tackle the situations that arose, and also to protect the admissions already made and avoid any complexities in the matter. Which thus means, in the larger interest of all concerned, the commissioner had to adopt an appropriate procedure in the matter of admission. 12. Therefore, the sole question remains to be considered is whether the stipulation contained under Ext.P9 letter dated 16.11.2020 of the Commissioner for Entrance Examinations that only those students who have not yet obtained admission so far alone, shall be considered for spot admission, is arbitrary or illegal. W.A.No. 1524/2020 : 12 : 13. In our view, the spot admission has to be conducted as per the directions of the Commissioner for Entrance Examinations only for the purpose of filling up the additional 10% seats and a procedure unique for that purpose had to be issued by the Commissioner for Entrance Examinations so as to ensure that the admissions already made are not disturbed in any manner. According to us, it is a pure academic matter and those who are associated in that process alone would be in a position to grapple the whole lot of situation, and normally and ordinarily, a writ court shall not interfere with such academic matters. 14. The case advanced by the learned Senior counsel for the appellant was that the less meritorious students would get admission in the Law Colleges consequent to the order of the Commissioner of Entrance Examinations. We can only say that it is a fortuitous circumstance that such students get admission in the Law Colleges on the basis of the additional seats sanctioned by the Bar Council of India and no manner of imputation can be made against any one for the inevitable consequence thereto. This we say because, we feel, permitting the students who have already secured admission in other Law Colleges to participate in the spot admissions can only create confusion and chain reaction of adverse situations, which would upset W.A.No. 1524/2020 : 13 : the entire admissions already made by the Commissioner of Entrance Examinations as per the merit list drawn in accordance with law. 15. Insofar as the second issue is concerned, we are of the firm opinion that the list drawn by the Principal of the Government Law College, Ernakulam on the basis of the communication issued by the Commissioner of Entrance Examinations dated 27.10.2020 was only in relation to the seats vacant then, and not on the basis of any additional seats allotted by the Bar Council of India. It may be true, the Bar Council might have taken a decision to allot 10% additional seats while the earlier spot admission was conducted, but that by itself will not resolve the situation, since the University as well as the Government will have to issue necessary orders consequent to the same. The order was issued by the Government only on 06.11.2020, i.e., after the admissions on 27.10.2020. Therefore, the appellant is not entitled to insist that the selection made on the basis of the list prepared as per the directions issued by the Commissioner of Entrance Examinations dated 27.10.2020 shall be continued till the entire seats are filled up in accordance with the seats additionally allotted by the Bar Council. We do not find much force in the said contention, because both operated in different fields and there is no illegality or arbitrariness in the Commissioner for Entrance Examinations issuing W.A.No. 1524/2020 : 14 : reasonable and necessary directions so as to ensure the smooth admission process and also for ensuring that the admission already done is not disturbed in any manner so as to have any chain reaction in that process. 16. Even though the learned counsel for the appellant has invited our attention to a judgment of the Apex Court in _**Arvind Kumar Kankane v. State of U.P and others**_ [2001(8) SCC 355=2001 KHC 1650], we are of the considered opinion that the aspect considered therein was in regard to the waitlisted candidates and the consequences thereto. The same fact situation is not available here. But, at the same time, the Apex Court has clearly held therein that the rule for providing allotment of subject (speciality) in respect of post-graduate medical courses and college of study made on the basis of the option exercised by a candidate is final and no candidate can be permitted to change the subject or the College. Therefore, we do not think that the proposition of law laid down therein would extend any legal benefit to the appellant . 17. Taking into account all the above aspects, we are of the considered opinion that the learned single Judge was right in holding that there is no legal infirmity or illegality in the process, and so W.A.No. 1524/2020 : 15 : understood, we have no hesitation to hold that the appellant has not made out a case for interference in the discretion so exercised under Article 226 of the Constitution of India, in an intra-court appeal filed under Section 5 of the Kerala High Court Act. Needless to say, the writ appeal fails and accordingly, it is dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_