Dr. Usha G. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 9TH DAY OF JANUARY 2013/19TH POUSHA 1934 WP(C).No. 17012 of 2012 (B) --------------------------- PETITIONER(S)/PETITINER: ----------------------- DR.USHA G., AGED 42 YEARS, 'PRASOONAM', T.C.16/645, KOCHAR ROAD, JAGATHY, THIRUVANANTHAPURAM DIST.-695014 BY ADVS.SRI.SANTHAN V.NAIR SRI.V.GOPIKRISHNA SRI.V.V.MITHUN RESPONDENT(S): -------------- 1. STATE OF KERALA REP.BY THE CHIEF SECRETARY TO GOVERNMENT, - GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. SRI.RAJEEV SADANANDAN, PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, - GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 3. DR.NISHA PAUL, THE PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMEOPATHIC MEDICAL COLLEG, IRANIMUTTOM, THIRUVANANTHAPURAM-695009 4. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695001. 5. THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE CAMPUS, MULAMKUNNATHUKAVU, THRISSUR-680581. WP(C).No. 17012 of 2012 (B) 6. DR.SMITHA M., NO-158, AKG NAGAR, PEROORKADA, THIRUVANANTHAPURAM-695005. R1 & R4 BY GOVERNMENT PLEADER SMT. MADHUBEN R5 BY SRI.P.SREEKUMAR,SC,KERALA UTY.OF HEALTH SCIENCES R6 BY ADVS. SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.11.2012, ALONG WITH WPC. 22754/2012, THE COURT ON 09.01.2013 DELIVERED THE FOLLOWING: DSV/- WP(C).No. 17012 of 2012 (B) APPENDIX PETITIONER(S) EXHIBITS : EXT.P1:COPY OF THE JUDGMENT DTD 23/5/2012 IN WPC 5402/2012 EXT.P2:COPY OF THE LETTER NO 876/C3/11/GHMCT DTD 21/4/2012 ISSUED BY THE 3RD RESPONDENT EXT.P3:COPY OF THE NOTIFICATION NO CEE/2512/MDH/2011/TA III DTD 24/2/2012 EXT.P4:COPY OF THE PROSPECTUS FOR ADMISSION TO POST GRADUATE COURSES IN HOMEOPATHY - M.D.HOMEO- FOR THE YEAR 2012-2013 EXT.P5:COPY OF THE EXPLANATION DTD 27/6/2012 SUBMITTED BY THE 6TH RESPONDENT. EXT.P6:COPY OF THE LETTER FROM THE 6TH RESPONDENT DATED 27/6/2012. EXT.P7:COPY OF THE REPORT NO SVRHMC/2012/135 DTD 29/6/2012 OF THE PRINCIPAL EXT.P8:COPY OF THE ORDER NO S.V.V.S/12/2012 DTD 30/6/2012 OF THE MANAGEMENT KEEPING THE 6TH RESPONDENT UNDER SUSPENSION EXT.P9:COPY OF THE MEMO OF CHARGES NO S.V.V.S/13/2012 DTD 02/7/2012 (ALONG WITH STATEMENT OF ALLEGATION)ISSUED BY THE MANAGEMENT OT THE 6TH RESPONDENT. EXT.P10:- COPY OF THE LETTER NO 29075/J2/2012/ H & FWD DTD 25/6/2012 SENT BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS : EXHIBIT R6(A) COPY OF THE REPRESENTATION DATED 29.02.2012 SUBMITTED BY THE 6TH RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT R6(B) COPY OF THE LETTER DATED 21.04.2012 ISSUED BY THE 3RD RESPONDENT TO THE COLLEGE. EXHIBIT R6(C) COPY OF THE LETTER DATED 11.06.2012 ISSUED BY THE PRINCIPAL TO THE 3RD RESPONDENT. WP(C).No. 17012 of 2012 (B) EXHIBIT R6(D) COPY OF THE MEMO DATED 12.06.2012 ISSUED BY THE 3RD RESPONDENT. EXHIBIT R6(E) COPY OF THE MEMO DATED 13.06.2012 ISSUED BY THE PRINCIPAL TO THE 6TH RESPONDENT. EXHIBIT R6(F) COPY OF THE MEMO DATED 14.06.2012 ISSUED BY THE MANAGER OF THE COLLEGE TO THE 6TH RESPONDENT. EXHIBIT R6(G) COPY OF THE REPLY DATED 27.06.2012 SUBMITTED BY THE 6TH RESPONDENT. EXHIBIT R6(H) COPY OF THE LETTER NO.29075/J2/2012/H&FWD DATED 25.06.2012 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT R6(I) COPY OF THE PROCEEDINGS DATED 30.06.2012 OF THE SECRETARY OF SREE VIDYADHIRAJA VIDYA SAMAJAM. EXHIBIT R6(J) COPY OF THE LETTER NO.33580/J2/2012/H&FWD DATED 17.07.2012 ISSUED BY THE 2ND RESPONDENT TO THE SECRETARY OF SREE VIDYADHIRAJA VIDYA SAMAJAM. EXHIBIT R6(K) COPY OF THE LETTER NO.SVSS/19/2012 DATED 20.07.2012 ISSUED BY THE SECRETARY OF SREE VIDYADHIRAJA VIDYA SAMAJAM. EXHIBIT R6(L) COPY OF G.O(RT)NO.2244/2012/H&FWD DATED 05.07.2012 ISSUED BY THE HEALTH & FAMILY WELFARE (J) DEPARTMENT. EXHIBIT R3(A) COPY OF THE G.O.(RT)NO.2244/H&FWD DATED 05.07.2012. EXHIBIT R3(B) COPY OF THE REPRESENTATION DATED 29.02.2012. EXHIBIT R3(C) COPY OF THE MINUTES OF THE MD(HOM) SELECTION COMMITTEE MEETING. EXHIBIT R3(D) COPY OF THE GOVERNMENT LETTER NO.29075/J2/H&FWD DATED, 25.06.2012. // TRUE COPY // P.A. TO JUDGE DSV/- ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.Nos.17012 & 22754 of 2012 ---------------------------------------Dated this the 9[th] day of January 2013 ## **J U D G M E N T** W.P.C No.17012 of 2012 is filed, challenging the admission of the 6[th] respondent for the M.D course of 2012-2013 in Homeopathy subject. 2. The facts involved in the case disclose that the petitioner who is working as Head of the Department in Homeopathy (Materia Medica) in the Sree Vidhyadhiraja Homeopathic Medical College (SVHM College) was selected for the M.D course in the year 2009 under the teacher's quota. She discontinued the course on account of certain illness. She sought for permission to continue the course in the new batch of 2012-2013. But, no action was taken by respondents 1 to 3 despite a direction issued by this Court to consider her representation. 3. It is the contention of the petitioner that when applications were invited for the new batch for the year 20122013 and she submitted her application in terms with the W.P.C.Nos.17012 & 22754 of 2012 2 prospectus the same was rejected stating that since the petitioner was already given admission in the teacher's quota once, the same opportunity cannot be given for a second time. Thereafter, according to the petitioner, the 6[th] respondent, who is junior to the petitioner, working in the very same college, was given admission. It is in the said circumstance the writ petition is filed challenging the admission of the 6[th] respondent which according to the petitioner is in violation of the terms of the prospectus. The main contention urged is that the application of the 6[th] respondent was defective in various aspects especially in regard to the fact that it was not forwarded through the head of the department/institution, that no objection certificate from the head of the department/institution was submitted, that conduct certificate was not produced and that the petitioner is now the senior most among the applicants eligible under the teacher's quota. 4. Going by the nature of contentions raised, it could be seen that the main reason for challenging the admission of the 6[th] respondent to the course is that the College or Institution has not given any certificates to the 6[th] respondent whereas the 6[th] W.P.C.Nos.17012 & 22754 of 2012 3 respondent has obtained admission without submitting the required documents after obtaining an order from the Government. 5. Petitioner, in addition to seeking a direction as stated above, also challenges Ext.P10, the order issued by the Principal Secretary to Government, Health & Family Welfare (J) Department to the Principal & Controlling Officer, Government Homeopathic Medical College, Thiruvananthapuram directing the Principal & Controlling Officer to permit the 6[th] respondent to join the P.G course 2012-13 on the basis of selection, on account of the fact that the college authorities are not willing to relieve her for joining the said course. 6. Counter Affidavit is filed by the 3[rd] respondent inter alia stating that though the petitioner was admitted to the Post Graduate course in the 'teacher's quota' during the academic year 2008-2009 and she joined the course on 22/06/2009, she was continuously absent from the course from 12/05/2010. Later, she sent a letter dated 16/06/2010 requesting to discontinue her course and she also paid the liquidated damages as specified in the prospectus. It is stated that as per the W.P.C.Nos.17012 & 22754 of 2012 4 prospectus for the academic year 2012-2013, a candidate who discontinued the course after joining in the teacher's quota from Aided and Government colleges will not be considered for admission to the P.G course under the teacher's quota. 7. It is further indicated that the 6[th] respondent has submitted an application for the M.D course for 2012-2013 under the Aided College Teacher's quota. She also submitted a representation to the Secretary, Health and Family Welfare Department stating that the Management of SVHM College was not issuing No Objection Certificate to her for applying to the M.D (Homeopathy) course. Ext.R3(b) is the said representation in which the Health Secretary made an endorsement dated 29/02/2012 directing her application to be received without No objection Certificate. The selection committee considered the No objection Certificate from the Secretary, Health & Family Welfare Department as valid document and as she was the senior most teacher from the department of Materia Medica, she was admitted to the course. Ext.R3(c) is the minutes of the Selection Committee. It is reiterated that the provisions of the prospectus has not been modified or relaxed. Ext.R3(d) is the direction W.P.C.Nos.17012 & 22754 of 2012 5 issued by the Secretary to permit the 6[th] respondent to join the course which is same as Ext.P10. 8. 6[th] respondent has filed a counter affidavit inter alia contending that the petitioner has no legal right to demand the admission on account of the fact that she had already availed an admission under the Teacher's quota and discontinued the course and therefore in terms of clause 5.4(c) of Ext.P4 she is not entitled for a second opportunity for getting admission under the teacher's quota. The 6[th] respondent also contends that there was no Principal in the SVHM College as there were no qualifying hands and on account of disputes in the seniority the matter is pending before a Division Bench of this Court and by an interim order dated 07/09/2009 in W.A.No.1945/2009 one Dr.RemaDevi was allowed to continue as Drawing and Disbursing officer. When the 6[th] respondent applied for 'No objection Certificate' before the Drawing and Disbursing officer, she was informed that no such certificate could be issued without approval of the management. When she approached the management, she was informed that unless and until the petitioner is selected for the M.D course under the teacher’s W.P.C.Nos.17012 & 22754 of 2012 6 quota, no such certificate could be issued to the petitioner. Since it was found that the management was showing undue interest in the case of the petitioner, 6[th] respondent submitted a representation to the Principal Secretary to Government on 29/02/2012 produced as Ext.R6(a) and on that basis her application was considered as per directions issued by the Government. Subsequently by letter dated 21/04/2012, the petitioner was informed by the College authorities that the application of the petitioner cannot be considered and the Drawing and Disbursing officer was called upon to give explanation for having issued 'No Objection Certificate' in favour of the petitioner as she was not eligible for teacher's quota appointment. By another letter dated 11/6/2012 Dr.P.Remadevi, acting as Principal of the College, informed the Principal and Controlling Officer Government Homeopathy Medical College stating that the 6[th] respondent has not been sponsored from the College and therefore she should not be permitted to attend the interview for selection. 6[th] respondent was also threatened with disciplinary action if she attends the interview unauthorisedly. However the 6[th] respondent attended W.P.C.Nos.17012 & 22754 of 2012 7 the interview on 12/06/2012 and on 13/06/2012 she was served with a memo to show cause why disciplinary action should not be taken against her. Ext.R6(g) is the reply for the said show cause notice explaining the reasons. According to the 6[th] respondent, as a result of such a hostile attitude towards her, she had approached the Government and by R6(h) letter (Ext.P10) the petitioner was permitted to join the course and she joined the course. Even thereafter, memo of charges was issued to her and the same was stayed by the Government as per Ext.R6(j). Ext.R6 (k) is the communication from the Management of the College stating that the Government has no locus standi to interfere in the matter and that the stay order is abinitio void. Ext.R6(l) is the order issued by the Government disposing of the representation of the petitioner as directed by this Court in terms with the judgment in W.P.C .No.5402 of 2012. 9. Therefore, according to the 6[th] respondent, the petitioner is only trying to make out a situation to prevent the 6[th] respondent from joining the Post Graduate course when the petitioner is not eligible and the management along with the Disbursing Officer did not want the 6[th] respondent to avail the W.P.C.Nos.17012 & 22754 of 2012 8 teacher's quota for which the necessary No objection Certificate and relieving order were not issued and it is in the said circumstance that the Government had intervened and ordered the college authorities to admit the petitioner under special circumstances by directing her application to be received without No objection Certificate and to admit her without any relieving letter from the management of the college in which she was working. 10. W.P.C No.22754 of 2012 is filed by another applicant, with reference to the very same admission to the P.G course in Homeopathy for the year 2012-2013. The main contention urged in this writ petition is regarding the admission of the 6[th] respondent for the P.G course, who is the 6[th] respondent in WPC 17012 of 2012 also. Since the subject matter relates to the very same admission and with reference to the same course, these writ petitions are decided by a common judgment. 11. The facts disclose that the petitioner is also an aspirant for getting admission to the said course. In the rank list published by the 5[th] respondent, the petitioner is placed as rank No.24. According to the petitioner, if there is no qualified W.P.C.Nos.17012 & 22754 of 2012 9 candidates under the 'teacher's quota' the same will go to the Kerala General Merit Quota. According to the petitioner, if the 6[th] respondent is not admitted, she stands a chance for getting admission. Hence the petitioner challenges the admission given to the 6[th] respondent inter alia on similar grounds and also contending that the admission of the 6[th] respondent is bad for non-compliance of clause 8(10) and clause 10 of Ext.P10 prospectus. Clause 8(10) indicates that the applicants under service quota should send their applications through the head of department/institution with necessary No objection Certificate, which is not complied by the 6[th] respondent and Clause 10 inter alia indicates that the application should also contain necessary certificate from the head of the department/institution to show that the candidate is working in such department and should also be followed by No objection Certificate furnished by the head of the department. According to the petitioner, the application of the 6[th] respondent should have been rejected at the threshold for want of particulars and so far as the admission given is against the stipulation at Ext.P10 the same has to be cancelled and in so far as there is no provision enabling the waiver of such W.P.C.Nos.17012 & 22754 of 2012 10 documents, it is not open for the Government to permit the 6[th] respondent to join the course. Hence the petitioner seeks for a direction to cancel the admission of the 6[th] respondent and to direct the petitioner to be admitted to the said course. 12. The counter affidavit in this case is filed by 3[rd] respondent Administrative officer, Government Homeopathy College, Thiruvananthapuram inter alia stating that the 4[th] respondent namely the Principal, SVHM College willfully prevented the issuance of No objection Certificate to the 6[th] respondent which resulted in the interference of the Government and the 6[th] respondent was attending classes since 27/6/2012. 13. The 6[th] respondent has filed a counter affidavit repeating the assertions made in the counter affidavit filed in W.P.C.No.17027 of 2012. It is also contended that the writ petition filed on 26/09/2012 is highly belated as the admissions were already over in June 2012 itself and the course started in 27/06/2012. 14. It is further submitted that when disciplinary proceedings were taken against the 6[th] respondent, she was advised to approach the University Appellate Tribunal by filing W.P.C.Nos.17012 & 22754 of 2012 11 appeal under Section 60(7) of the Kerala University Act and the Tribunal stayed all further proceedings which is evident from Ext.R6(m). The 6[th] respondent therefore prayed for dismissal of the writ petition. 15. Heard learned counsel for petitioners and respondents. 16. The main contention urged by the petitioners in both the cases is the violation of the conditions in the prospectus. The learned counsel for the petitioner relied upon the judgment of the Supreme Court in ( **Priya Gupta)** [2012(7) SCC 433 ] and an unreported judgment in **Asha v. P.T/B.D Sharma University Health Sciences & Ors** . [Civil Appeal No.5055 of 2012 dated 10/07/2012] for the proposition that the college cannot give any admission in violation of the terms of the prospectus and complying with the terms of the prospectus are of mandatory nature and no relaxation could be granted in respect of the terms of prospectus. The learned counsel also relied upon the judgment in **Jayakumar v. Director of Medical Education** [2000 (3) KHC 626] especially paragraph 14,15 and 21 which inter alia deals with the position that the admissions are W.P.C.Nos.17012 & 22754 of 2012 12 governed by the provisions contained in the prospectus and no deviation should be made from the terms of the prospectus and the court cannot direct either amendment of the prospectus nor considering a candidate in a manner otherwise than in accordance with what has been provided in the prospectus. Same proposition is dealt in another Division Bench of the High Court in **Sainulabdin v. State of Kerala** [1995 KHC 362]. **Vipin v. State of Kerala** [2010(4) KLT 380] also confirms the fact that there cannot be any deviation from the prospectus as the same controls the admission and it is the Magna Carta for the candidates seeking admission to the particular course . 17. On the other hand, while supporting the averments made in the counter affidavit, learned counsel for the 6[th] respondent relies upon the judgment of the Constitution Bench of the Supreme Court in **R.Chitralekha & Ors. v. State of Mysore & Ors** [AIR 1994 SC 1823] in order to contend for the proposition that the Government has the power to interdict in the matter when it is found that there is a factual circumstance which requires interference and to prevent an illegality to be perpetuated by an aided college. According to the learned W.P.C.Nos.17012 & 22754 of 2012 13 counsel, the Government has supervisory power in Government and Aided colleges and while directing the application of the petitioner to be considered for admission to the Government College for Post Graduate course, the Government was only rectifying the illegality that was being perpetuated against the petitioner. 18. The learned counsel appearing for the 4[th] respondent in W.P.C No.22754 of 2012 who is appearing for the petitioner in W.P.C.No.17012 of 2012 also raised identical contentions and relied upon the judgments relating to the prospectus conditions to be complied with. 19. In regard to W.P.C No.17012 of 2012, it is not in dispute that going by the conditions of the prospectus especially Clause 5.4(c), the petitioner cannot seek an appointment to the said course. The Clause reads as under: “The candidates who discontinued the course after joining in teacher's quota from both aided and Government Colleges will not be considered for admission to P.G course under teacher's quota.” 20. Admittedly, the petitioner got admitted to the post graduate course under the 'teacher's quota' during the W.P.C.Nos.17012 & 22754 of 2012 14 admission of 2008-2009 and she discontinued the course which, according to her, is on medical grounds. But, in so far as the prospectus contain such a provision, it is not possible for the petitioner to seek a right to claim the admission. There was hence justification in rejecting the request of the petitioner as per Ext.P2. 21. Then the other question is whether the admission of the 6[th] respondent under the teacher's quota is valid or not. There is no dispute about the fact that the terms of the prospectus requires to be complied with. But, in the present case, the question is whether the directions issued by the Government to the Principal and Controlling Officer of Government Homeopathy Medical College, 3[rd] respondent herein to consider the application of the petitioner without the requisite No objection Certificate from the head of the department of the institution where she was working by way of an endorsement in Ext.R6(a) and thereafter issuing Ext.P10 as in compliance with the terms of the prospectus is valid in law. 22. It is not in dispute that the application of the 6[th] respond did not contain the necessary No objection Certificate as W.P.C.Nos.17012 & 22754 of 2012 15 envisaged in the prospectus and in the normal circumstances the application will be rejected. But, what happened in the present case as narrated by the 6[th] respondent, will disclose the reason as to why the Government had interfered in the matter. The Management of the college namely the 4[th] respondent in WPC No.22754 of 2012 admittedly, did not give the No objection Certificate to the 6[th] respondent which prevented her from submitting a proper application in terms with the prospectus for the Post Graduate course. The petitioner in WPC No.17012 of 2012 was the senior most teacher in the department. But she was not eligible to be considered for the said course on account of the prospectus provision in Clause 5.4(c). The next person having eligibility for applying for the above course is the 6[th] respondent. 23. The facts of the case will clearly disclose that the Management of the college did not want to permit the 6[th] respondent to apply for the said course. This, by itself, is an act of prevention and when she sought for Government interference, Government directed her application to be considered notwithstanding the absence of 'No objection Certificate'. It is W.P.C.Nos.17012 & 22754 of 2012 16 not a case where the 6[th] respondent was not eligible for the teacher's quota. It is a case where there was deliberate inaction on the part of the aided college in issuing the No objection Certificate and other particulars to enable the 6[th] respondent to submit an application. It is not understandable as to why knowing fully well that senior most teacher was not entitled for admission, there was failure on the part of the management to provide necessary certificate to the 6[th] respondent. The facts will be more clear when they sought for taking disciplinary action against the 6[th] respondent and they even tried to prevent the 6[th] respondent from getting admission and attending the course. These facts and circumstances are evident from the documents produced by the 6[th] respondent which would indicate the justification on the part of the Government to direct that the 6[th] respondent's candidature to be considered under the teacher's quota and she is admitted to the course. 24. I do not think that any mala fides can be attributed to the Government in issuing such orders and it is not a question of relaxing or modifying the terms of the prospectus as contended by the learned counsel for petitioners. It is a case of prevention, W.P.C.Nos.17012 & 22754 of 2012 17 where the College in which the 6[th] respondent was working, prevented her from getting an admission to a Post Graduate course for which she is eligible. The Government has the supervisory control over the Government and Aided colleges where the Post Graduate course is conducted. An action of deliberate prevention by the aided college was sought to be rectified as admissions were to be completed within a specified time. 25. Under these circumstances, I do not think that there is any justification for the petitioner to challenge the admission of the 6[th] respondent, and it is not a simple case of non production of documents as per the prospectus. 26. In regard to the claim of the petitioner in WPC No.22754/2012 also, the said writ petition is filed after the admissions are over. That apart, for the reasons stated above, since I have already held that interference of the Government is proper, taking into consideration the factual circumstances involved in the matter, this writ petition also fails. W.P.C.Nos.17012 & 22754 of 2012 18 For the above reasons, I am of the view that the petitioners in the above writ petitions are not entitled for any reliefs. The writ petitions are hence dismissed. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.Nos.17012 & 22754 of 2012 19 W.P.C.Nos.17012 & 22754 of 2012 20