Hridya Harikumar v. State of Kerala & Others

## **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.1527 OF 2020** **AGAINST THE ORDER/JUDGMENT IN WP(C) 25789/2020(W) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **HRIDYA HARIKUMAR AGED 18 YEARS D/O HARIKUMAR C, OMKARAM, THALAYAZHAM P.O.VAIKOM, KOTTAYAM DISRICT-686 607, NOW RESIDING AT POLICE QUARTERS NO E8, THRIPUNITHURA, ERNAKULAM, PIN-682 301.** **BY ADVS. SRI.GIBI.C.GEORGE SMT.LATHA SUSAN CHERIAN SRI.GEORGE A.CHERIAN** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE COMMISSIONER FOR ENTRANCE EXAMINATION, OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.** - **3 THE BAR COUNCIL OF INDIA. REPRESENTED BY ITS SECRETARY, 21, ROUSE AVENUE, INSTITUTIONAL ARES, NEAR BAL BHAVAN, NEW DELHI-10 002.** - **4 THE BAR COUNCIL OF KERALA, REPRESENTED BY ITS SECRETARY, NEAR HIGH COURT OF KERALA, KOCHI-682 031.** WA.No.1527 OF 2020 2 **5 THE PRINCIPAL, GOVERNMENT LAW COLLEGE, ERNAKULAM, PARK AVENUE ROAD, KOCHI-682 011.** **6 THE PRINCIPAL, GOVERNMENT LAW COLLEGE, THRISSUR, COLLEGE ROAD, MADONA NAGAR, AYYANTHOLE, THRISSUR-680 003.** **SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER SRI.RAJIT, STANDING COUNSEL** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1527 OF 2020 3 ## **JUDGMENT** ## **SHAJI P. CHALY, J.** This appeal is preferred by the writ petitioner in W.P.(C) No. 25789 of 2020 challenging the judgment dated 23.11.2020, whereby a learned Single Judge dismissed the writ petition holding that in the light of the judgment rendered in W.P.(C) Nos.25637/2020 & 25725/2020 dated 23.11.2020, the writ petition along with a connected writ petition are also dismissed. It is further stated that all the findings therein will apply in the case of the petitioners also except for the fact the petitioners herein seek admission for 5 year course, all other contentions are similar to those raised in the above specified writ petitions. It is challenging the legality and correctness of the judgment, petitioner in one of the writ petitions has filed the above appeal. Brief material facts for the disposal of the writ appeal are as follows; 2. Appellant participated in the online entrance examination conducted by the 2[nd] respondent in respect of Five year LL.B course 2020-2021 held on 22.6.2020. Appellant got qualified in the entrance examination and has secured Rank No.136. In the first phase allotment, appellant opted for WA.No.1527 OF 2020 4 Government Law College, Ernakulam as her first option along with other alternative options. But in the first phase allotment, appellant did not get admission in Government Law College, Ernakulam and she was allotted admission in Government Law College, Thrissur. In the 2[nd] , 3[rd] and Mop-up allotments also, appellant did not get admission in Government Law College, Ernakulam. 3. Fact remains after completion of aforesaid allotments, the Bar Council of India sanctioned additional 10% seats in the Law Colleges in Kerala. Based on the additional 10% seats so sanctioned, the Commissioner of Entrance Examination, Kerala, the 2[nd] respondent in the appeal, issued Ext.P11 communication dated 16.11.2020 prescribing conditions in the matter of selection for the 10% seats allotted by the Bar Council. Among other directions a peremptory direction was issued as paragraph No.3 that, the candidates, who are included in the rank list published by the Commissioner of Entrance Examination and who have not yet secured admission only are considered for the spot admission. It is basically aggrieved by the said conditions, the writ petition was filed. 4. We have heard learned Senior counsel for the appellant Sri. George Cherian assisted by Adv. George A. Cherian and the learned Senior Government Pleader Sri. Tek Chand and perused the pleadings and materials on record. WA.No.1527 OF 2020 5 5. As we have pointed out earlier, the learned Single Judge has considered the similar issue in respect of Three year LL.B course in the writ petitions referred above. While dismissing the said writ petitions, the learned Single Judge has relied upon a Division Bench judgment of this Court in writ appeal No.2230/2018 under similar circumstances and held as follows at paragraph 3: “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 v. 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.” 6. On going through the said judgment, it is quite clear and evident that it was under similar circumstances the proposition was laid down by the Division Bench. That apart we have considered writ appeal No.1524 of 2020, which was a challenge against the judgment in W.P.(C) No.25637 of 2020, wherein a similar issue arose in respect of admission to Three year LL.B WA.No.1527 OF 2020 6 course. We considered the entire aspects and dismissed the writ appeal holding that there was no error of jurisdiction or discretion on the part of the learned Single Judge in exercising the power conferred under Article 226 of the Constitution of India. So also we have fortified by the the judgment of the Apex Court in **Aravind Kumar Kankane v. State of U.P. and Others** [(2001)8SCC 355 = 2001 KHC 1650]. It was also taken note of by the learned Single Judge in the writ petition disposed of prior to the instant writ petition leading to this appeal, wherein it is specifically held that rule providing for allotment of subject (speciality) and college of study made on the basis of option exercised by a candidate is final and no candidate can be permitted to challenge the subject or the college. It was further held therein that the effect of putting the seat back for counselling for all candidates would upset the entire counselling, which had already taken place and therefore, the rule framed accordingly was upheld. Paragraph 3 & 4 of the said judgment is relevant to the context and they read thus: “3. Aggrieved by these directions, an appeal was preferred by the Director General of Medical Education and Training. The Division Bench, after considering the scheme of admission and conditions imposed therein and the decisions of the Full Bench of Delhi High Court in Dr. Veena Gupta v. University of Delhi, AIR 1994 Delhi 108 (FB) and of High Court of Punjab and Haryana in Anil Jain v. The Controller of Examinations, 1998 (3) ESC 2016, held that any seat which is available and which has not been WA.No.1527 OF 2020 7 included in any of the three counselling by mistake should be filled in, in order of merit amongst the wait listed candidates. Normally, when a seat is available, the same should be included in the initial counselling. If by mistake a seat is not included in the initial counselling then the effect is that nobody opts for the same. If now the said seat is sought to be offered to all the candidates for counselling, the result would be that all the candidates who took part in the first counselling should be given a chance, in order of merit, to opt for the same seat. This will start a chain reaction and ultimately there will be one seat more, which would become available for the second counselling. There again a chain reaction will start leading to the third counselling. The effect of putting the seat back for counselling for all candidates would, therefore, be to upset the entire counselling which had already taken place. Prima facie though it appears to be somewhat unfair, there is no alternative, apart from leaving the seat unfilled, but to offer the said seat to the wait listed candidates. It was also noticed that once the academic course commences the same will have to be completed within a period of the three years and if the counselling goes on continuously for a long period then it may not be possible to fulfil that condition and thereby upset the course of study itself. On this basis, the Division Bench set aside the order made by the learned Single Judge and allowed the appeal. It is against this order and connected matters that the present appeals are filed by special leave. 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 WA.No.1527 OF 2020 8 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. 7. The basic contention advanced by the appellant in the appeal is that paragraph No.3 in Ext.P11 order dated 16.11.2020 issued by the Commissioner of Entrance Examination to the extent it denies the candidates, who have secured admission, to participate in the spot admission to fill up the 10% additional seats sanctioned by the Bar Council of India is highly illegal and unjust. 8. The sum and substance of the contention put forth by the appellant is that unless and until all the candidates inclusive of those who have secured admission in the Law Colleges are allowed to participate in the spot admission, it would be unjust and unreasonable. However, going by the settled legal principles discussed above, we are of the considered opinion that it was with the intention of ensuring disciplined manner of admission and also for ensuring that the already granted admissions are not disturbed by the spot admission, paragraph 3 was included by the Commissioner of Entrance Examinations in the communication dated 16.11.2020, which has a noble object and real intention sought to be achieved. As pointed out above, in writ appeal WA.No.1527 OF 2020 9 No.1524/2020, we have approved the questioned paragraph of letter dated 16.11.2020 holding that there is no illegality or arbitrariness in including such a condition. 9. Having regard to the facts and circumstances of the case, we are of the considered opinion that the appellant has not made out any case justifying interference in the judgment of the learned Single Judge 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** smv **JUDGE**