Jumni Nasry U.M v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE V.G.ARUN ``` ``` MONDAY, THE 11[TH] DAY OF MARCH 2024 / 21ST PHALGUNA, 1945 ``` ## **`WA NO. 1879 OF 2023`** ``` AGAINST THE JUDGMENT DATED IN WP(C) NO.33935 OF 2023 OF ``` ``` HIGH COURT OF KERALA ``` ``` APPELLANT/PETITIONER IN THE WPC: ``` ``` JUMNI NASRY U.M AGED 27 YEARS, W/O. JAMSHEER.G, GOSALAKKAL HOUSE, KAKKAD, KARASSERY POST, KAKKAD VILLAGE, KOZHIKODE DISTRICT, PIN – 673 602 ``` ``` BY ADVS. D.KISHORE R.MURALEEKRISHNAN (MALAKKARA) MEERA GOPINATH ``` ## **`RESPONDENTS/RESPONDENTS IN WPC:`** - **`1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF HIGHER EDUCATION, 1ST FLOOR, ANNEX-II, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001`** - **`2 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN – 695 001`** - **`3 KERALA UNIVERSITY OF HEALTH SCIENCES MEDICAL COLLEGE P.O., THRISSUR DISTRICT REPRESENTED BY ITS REGISTRAR, PIN – 680 596`** - **`4 GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE IRANIMUTTAM, MANACAUD P.O., THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS PRINCIPAL, PIN – 695 009`** - **`5 GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE KARAPARAMBA P.O., KOZHIKODE DISTRICT, REPRESENTED BY ITS PRINCIPAL, PIN – 673 010`** - **`ADDL.R6 ROY K. JAMES KARUKAPARAMBIL, KARAPARAMBA, KOZHIKODE - 673 010`** **W.A.No.1879 of 2023** **2** ``` ADDL. R7 THE SECRETARY TO GOVERNMENT ``` ``` AYUSH (B) DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001. ``` ``` ARE IMPLEADED AS ADDL. RESPONDENTS 6 AND 7 AS PER ORDER DATED 14.02.2024 IN IA.NO.2/2023 IN WA 1879/2023. ``` ``` BY ADVS. P.SREEKUMAR SAJEEV KUMAR K.GOPAL ``` ``` SR.GP.V.TEKCHAND ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 11.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.1879 of 2023** **3** ## **JUDGMENT** Dated this the 11[th] day of March 2024 ## **A.J. Desai, C.J.** A Government Pharmacist, who submitted an application for getting admission under the Prospectus issued by the Government of Kerala for admission to a professional degree course on 16.03.2023 for the year 2023 to a reservation seat at Government Homoeopathic Medical College, Karaparamba, Kozhikode, has challenged the order dated 20.05.2023 issued by the Ayush Department, Government of Kerala, permitting the interchanging of Special Reservation Seats for BHMS admission at the Government Homoeopathic Medical College, Trivandrum and Government Homoeopathic Medical College, Kozhikode on rotation basis as per the 2023-2024 UG Admission 2023 Prospectus. 2. Short facts that arise from the record are as under: The appellant (hereinafter referred to as the “petitioner”), who is working as Pharmacist Gr. II at Government Homoeo Dispensary, Thakazhy, submitted an **W.A.No.1879 of 2023** **4** online application before the last date prescribed for submission of the application i.e., 10.04.2023, for getting admission at Government Homoeopathic Medical College, Kozhikode since the said post was reserved for service quota candidates. 3. The petitioner appeared for the Entrance Examination (NEET) scheduled on 07.05.2023 and cleared the same. Being the topper, she was entitled to get admission to the BHMS course at Kozhikode. But to the petitioner’s surprise, she received an allotment memo dated 14.09.2023 from the Commissioner for Entrance Examinations, as per which she would be entitled for admission to the BHMS (BH) course at Government Homoeopathic Medical College, Trivandrum instead of Government Homoeopathic Medical College, Kozhikode. When the petitioner inquired about the same, she came to know that the Ayush Department, by order dated 20.05.2023, had interchanged the seats considering two references, one, a decision of the UG prospectus revamp committee dated 06.02.2023 and the other, a communication dated **W.A.No.1879 of 2023** **5** 13.02.2023 issued by the Principal and Controlling Officer, Government Homoeopathic Medical College, Trivandrum addressed to the Principal Secretary, Ayush Department, Government of Kerala. Aggrieved by the denial of admission at the Government Homoeopathic Medical College, Kozhikode, the petitioner challenged the said decision as well as her admission at Trivandrum by filing W.P.(C)No.33935 of 2023. 4. The learned Single Judge, after hearing the petitioner as well as the State Authorities, dismissed the petition. Hence this appeal. 5. The learned counsel appearing for the petitioner would submit that when the Government of Kerala issued prospectus for admission to professional degree courses on 16.03.2023, wherein it was made clear that one seat was reserved at the Government Homoeopathic Medical College, Kozhikode for Nurse/Pharmacist quota to the BHMS course and one seat was reserved at Government Homoeopathic Medical College, Trivandrum for candidates having qualification of MBBS / BAMS / BVSc & AH / Agriculture / **W.A.No.1879 of 2023** **6** Fisheries / Forestry Degree holders, the petitioner had submitted her application for the course at Government Homoeopathic Medical College, Kozhikode since she was entitled to the said post being a Pharmacist. 6. He would submit that the petitioner appeared for the examination on 17.05.2023 and when the result was declared on 27.07.2023, having scored maximum marks, she was expecting that she would be admitted at Government Homoeopathic Medical College, Kozhikode. But to her surprise, she received the communication dated 14.09.2023 from the Commissioner for Entrance Examinations that her allotment was to the Government Homoeopathic Medical College, Trivandrum. He would submit that the order dated 20.05.2023, which has been relied on by the State Authorities, has been issued subsequent to the process of filing applications and conducting the Entrance Examination. By taking us through the said order dated 20.05.2023 (Exhibit P10), he would submit that the said order referred to the minutes of the meeting held on 06.02.2023 by the prospectus revamp committee and by the committee **W.A.No.1879 of 2023** **7** decision No.50, it was decided that the prospectus should be published immediately and accordingly, the same was issued on 16.03.2023. By taking us through the communication dated 13.02.2023, which is also referred to in Exhibit P10 order and produced by the respondent State Authorities as Annexure A1, he would submit that though the Principal & Controlling Officer, Government Homoeopathic Medical College, Trivandrum had requested the Principal Secretary to Ayush Department, to sanction admission to BHMS course for nurses/pharmacists as well as for MBBS / BAMS / BVSc & AH / Agriculture / Fisheries / Forestry Degree holders by rotation, such reference was not mentioned in the Prospectus, issued subsequent to Annexure A1 communication and, therefore, the power exercised by the State Authority to interchange the seats vitiates the entire process undertaken by the authority. 7. The learned counsel would further submit that the contention raised by the respondent authority that the Government has got ample power under clause 1.6 of the Prospectus to modify/annul/delete any clause in the **W.A.No.1879 of 2023** **8** Prospectus cannot be accepted since the Government authority was fully aware about the request made by the Principal of the Government Homoeopathic Medical College, Trivandrum for rotation and should, therefore, have exercised the power at the relevant time or, at least, mentioned about the possibility of the seats being interchanged in the Prospectus. He, therefore, would submit that the illegal action at the time of allotment is required to be quashed. 8. In support of his submission, learned counsel relied on a decision of the Division Bench of this court in **Varghese Philip v. State of Kerala** (2004 (1) KLT 581), wherein it has been held that the admission to a course or modifying or amending the prospectus after the last date fixed for submission of the application is not permissible and if such amendments are made, the same is required to be quashed. 9. By relying on another decision of this court in **Sreeja S. and Others v. State of Kerala and Others** (2013 (1) KLT 345), he would submit that, though the Government has the power to amend the Prospectus, the exercise at the fag-end **W.A.No.1879 of 2023** **9** of the entire selection process adversely affecting the rights of the candidates, is also required to be quashed. He would submit that it was the legitimate expectation of the petitioner that being the first rank holder, she would get admission at the Government Homoeopathic Medical College, Kozhikode since the prospectus discloses reservation seat for Nurse/Pharmacist for BHMS course. In support of his submission, learned counsel relied on the decision of the Hon’ble Apex Court in **State of Rajasthan v. Sharwan Kumar Kumawat** (AIR 2023 SC 3586) and would submit that the appeal is required to be allowed. 10. On the other hand, the learned Senior Government Pleader appearing for the State authorities relied on clause 1.6 of the Prospectus which empowers the State authority to modify/add/delete the Prospectus itself and, therefore, the decision dated 20.05.2023, which has been taken after considering the relevant facts and the earlier admissions to the reserved quota, does not require any interference. 11. Learned Senior Government Pleader would submit that, while interchanging the seats, appropriate reasons have **W.A.No.1879 of 2023** **10** been recorded by the authorities. By taking us through the communication dated 13.02.2023, which was addressed to the State Authorities by the Principal and Controlling Officer of the Government Homoeopathic Medical College, Trivandrum, he would submit that, since the seat reserved for Nurse/Pharmacist at Kozhikode was not filled in the previous years, it was requested to interchange the seats and, therefore, a decision was taken on 20.05.2023, which does not call for any interference. He, therefore, would submit that the appeal be dismissed. 12. Learned counsel appearing for the additional 6[th] respondent, who got admission at the Government Homoeopathic Medical College, Kozhikode, based on the order dated 20.05.2023, would submit that since the 6[th] respondent has been admitted at the Government Homoeopathic Medical College, Kozhikode and the petitioner is admitted at Trivandrum and are pursuing their courses accordingly, their study may not be disturbed at this stage. He has also adopted the arguments of the learned Government Pleader. He would submit that the decision was **W.A.No.1879 of 2023** **11** not taken at the fag-end, and the order was passed prior to the result of the examination, which was declared on 27.07.2023. By relying on the decision of this Court in **Relly Susan Mathew v. Controller of Entrance Examinations and** **Others** (1997 KHC 604), he would submit that the appeal be dismissed. 13. We heard learned counsel appearing for the respective parties. 14. It is not in dispute that the petitioner is working as a Government Pharmacist in the State of Kerala. The Prospectus for admission to professional degree course was approved by the Government of Kerala vide G.O.(MS) No.114/2023/HEDN. dated 16.03.2023. The said Prospectus makes it clear that the last date for submitting the application for availing admission in different courses is 10.04.2023. The petitioner has submitted the application within the time prescribed in the said Prospectus. 15. Internal page 130 of the Prospectus shows the list of institutions in which the BHMS courses are offered, the number of seats, etc. [Annexure - IV (1)], which reads as under: **W.A.No.1879 of 2023** **12** |**Sl.**<br>**No.**|**Code**|**Government Homoepathic**<br>**Medical Colleges**|**University**|***Total**<br>**seats**|**Phone No.**| |---|---|---|---|---|---| |1|**KKH**|Government<br>Homoepathic<br>Medical College, Karaparamba<br>P.O., Kozhikode-10|<br> <br>KUHS|63|0495 -<br>2370883,<br>2371989| |2|**TVH**|Government<br>Homoepathic<br>Medical College, Iranimuttam,<br>Manacaud<br>P.O.,<br>Thiruvananthapuram-695009|<br> <br> <br>KUHS|63|0471 -<br>2459459| 16. Internal page 131 of the Prospectus shows that one seat at the Government Homoeopathic Medical College, Kozhikode (which is referred to as KKH) is reserved for Nurses / Pharmacist Quota and one seat at the Government Homoeopathic Medical College, Trivandrum (TVH) is reserved for qualified MBBS / BAMS / BVSc & AH / Agriculture - / Fisheries / Forestry Degree holders. The said table is ## reproduced hereunder: |**Sl.**<br>**No.**|**Category**|**Category**|**TVH**|**KKH**|**KTH**|**EKH**|**NEH**|**Total**| |---|---|---|---|---|---|---|---|---| |1|Nominees of other States /<br>Union Territories with no<br>Medical/Dental Colleges||1|-|-|-||1| |2|Lakshadweep nominee||-|1|-|-||1| |3|Sports<br>quota|Individual Event (PI)||1|-|-||2| |||Team Event (PT)|1|||||| |4|NCC Quota**(CC)**||1|1|-|-||2| |5|Ex-Service men Quota**(XS)**||1|-|-|-||1| |6|Serving Defence Quota**(SD)**||1|-|-|-||1| |7|Nurses / Pharmacist Quota<br>(Homoeo)**(NH)**||-|1|-|-||1| |8|Management Quota||-|-|7|8|8|23| |9|For MBBS / BAMS / BVSc & AH /<br>Agriculture / Fisheries /<br>Forestry Degree Holders**(OH)**||<br>1|-|-|-|-|1| |10|All India Quota||9|9|9|9|9|45| ||**Total**||**15**|**13**|**16**|**17**|**17**|**78**| **W.A.No.1879 of 2023** **13** 17. All the candidates were thus made aware of the seats available for different courses, apart from the above referred two reserved seats of Nurse/Pharmacist and MBBS / BAMS / BVSc & AH / Agriculture / Fisheries / Forestry Degree holders. Accordingly, the petitioner appeared for the examination on 17.05.2023. The petitioner came to know about her allotment to Trivandrum only on receiving Exhibit P7 communication dated 14.09.2023. She later came to know that her allotment to Trivandrum was based on the order dated 20.05.2023 (Exhibit P10). Being a short order, translated version of Exhibit P10 is reproduced hereunder: “GOVERNMENT OF KERALA ## ABSTRACT Ayush Department – Admission to BHMS Course by interchanging of Special reservation seats in rotation basis – orders issued. --------------------------------------------------------------------------------------------- ## AYUSH (B) DEPARTMENT G. O. (P) No. 168/2023/AYUSH Dated Thiruvananthapuram 20.05.2023 --------------------------------------------------------------------------------------------- Read: 1. Decision of the U.G. Prospectus revamp committee dated 6.2.2023 **W.A.No.1879 of 2023** **14** 2. Letter No. 1525/C2/2022/G.H.M.C.T. of Principal and Controlling Officer dated 13.2.2023. ## ORDER 1. As per Annexure-(V)(2), one seat is allotted for Special Reservation Seats for BHMS Course Sl. No. 7 Nurses/Pharmacist Homoeo NH to Kozhikode Government Homoeopathic Medical College and 1 seat is allotted to Sl. No. 9 for MBBS BAMS/BVSc & AHV Agriculture/Fisheries/Forestry Degree Holders (OH), Government Homoeopathic Medical College, Thiruvananthapuram. As nobody is taking admission in this quota, from 2023 onwards Sl. No. 7 Nurses/Pharmacist Quota, (Homoeo) NH mig as per rotation is given to Government Homoeopathic Medical College, Thiruvananthapuram and Sl.No. 9 for MBBS/BAMS/BVSC & AH/Agriculture/Fisheries/Forestry Degree holders (OH) is given to Government Homoeopathic Medical College, Kozhikode and the same is informed to the Entrance Commissioner for consideration and recommendation to the Government as per the above reference No. 1. In the above circumstances, permission is sought from the Principal and Controlling Officer as per Ref No 2 to allow to fill the above quota by rotation. 2. The Government after considering the matter in detail, hereby permits the interchanging of Special Reservation Seats of BHMS admission of Government Homoeopathic Medical College, Thiruvananthapuram and Government Homoeopathic Medical College, Kozhikode on the basis of rotation as per 2023-24 UG Admission 2023 prospectus. Vijayakumar S. Joint Secretary” **W.A.No.1879 of 2023** **15** 18. In the decision, the first reference is to the abstract of the minutes of the meeting held on 06.02.2023, particularly, committee decision No.50, which reads as under: “ – Committee Decision 50 It has been decided to implement the proposal to allow change from the existing colleges to other colleges in the Special Reservation Seats allotted in the Course of BHMS (Annexure–IV(2)) as soon as the Government Order is received.” Therefore, the decision was in existence when the prospectus was issued on 16.03.2023. 19. It is pertinent to note that in the second reference, i.e., Annexure A1 sent by the Principal and Controlling Officer of the Government Homoeopathic Medical College, Trivandrum, a request was made to the Principal Secretary, Ayush Department, to interchange the seats by rotation. The said letter dated 13.02.2023 is reproduced hereinbelow: “No. 1525/C2/2022/G.H.M.C.T. Government Homoeopathic Medical College, Airanimuttom, Thiruvananthapuram, Phone No.0471-2459459 E Mail: pcodhme@gmail.com **W.A.No.1879 of 2023** **16** ## Dated: 13-02-2023 Principal & Controlling Officer Principal Secretary, Ayush (B) Department, Government Secretariat, Thiruvananthapuram Sir, Sub: G.H.M.CT - Getting Government sanction for B.H.M.S Special Reservation Seat – Reg. Ref: Prospectus Revamp Meeting in U.G 2023-24 dated 0602-2023 Kind attention is invited to the above reference. As per reference in connection with admission of 2023-24, the special reservation seats in Annexure (IV) (2) of 2023 prospectus finalisation meeting, one seat has been given for Government Homoeopathic Medical College, Kozhikode, under Serial No.7 - Nurses/Pharmacist Quota (Homoeo)/NH and there is one seat for Government Homoeopathic College, Thiruvananthapuram, under serial 9 - MBBS/BAMS/BVSc/AH/Agriculture/Fisheries/Forestry Degree holders (OH) for years. Since no one has taken admission in the aforesaid quota, entrance commissioner has been informed to consider according sanction of one seat from 2023 admission made onward to Government Homoeopathic Medical College, Thiruvananthapuram, under serial number 7 - Nurses/ Pharmacist quota (Homoeo) NH seat and one seat for Government Homoeopathic Medical College, Kozhikode, under serial number 9 for MBBS/BAMS/BVSc & AH/Agriculture/Fisheries/Forestry **W.A.No.1879 of 2023** **17** degree holders (OH) by rotation and also sought for the sanction of the Government in the matter. In the circumstances, it is requested to accord sanction for admission to the aforesaid quota by rotation. Yours faithfully, Sd/Principal & Controlling Officer Government Homoeopathic Medical College, Thiruvananthapuram” 20. If we scrutinise the aforesaid letter, it can be seen that only a request has been made to interchange the seats, that too, way back on 13.02.2023. However, when the prospectus was issued more than one month from the date of the letter, there was no reference at all to the inter se communication or any proposal for interchanging the BHMS seats between the Kozhikode and Trivandrum Medical Colleges. When the Government was fully aware of the decision of the prospectus revamp committee and the request made by the Principal of the Government Homoeopathic Medical College for rotation every year, we are of the considered opinion that the same should have been reflected in the Prospectus, so that the proposal mooted during the pendency of the admission process is **W.A.No.1879 of 2023** **18** ## known to all concerned. ## 21. Clause 1.6 of the Prospectus reads as under: “1.6. This Prospectus is subject to modification / addition / deletion, as may be deemed necessary by the Government.” The above clause empowers the State Government to modify/add/delete the Prospectus as may be deemed necessary by the Government. In our considered opinion, this power cannot be used arbitrarily when the authority is fully aware of the decision No.50 taken by the revamp committee of the UGC and request for interchange the seats was pending for consideration before the issuance of the Prospectus dated 16.03.2023. Therefore, the submission advanced by the learned Senior Government Pleader regarding the power under clause 1.6 cannot be made applicable in the present case. 22. It was the duty of the Government to inform the candidates about the possibility of future amendments. The amendment cannot be permitted, if the same would affect the rights of the candidates, who are made to believe that **W.A.No.1879 of 2023** **19** the terms and conditions referred to in the Prospectus are final. Even otherwise, the proposal being to rotate the seats every year, the same can be made applicable from next year, that too by specifically stating so in the Prospectus for the next year. 23. Therefore, in our considered opinion, the decision relied on by the learned counsel for the petitioner in **Varghese Philip v. State of Kerala** (supra) would be applicable in the present case, since the modification has been made not only after submission of the application but after conduct of the examination. 24. As far as the decision relied on by the private respondent is concerned, we find the same to be not applicable. Hence, we hereby allow the appeal, quash the order dated 20.05.2023 and set aside the judgment delivered by the learned Single Judge. The respondent authority shall take all consequential steps at the earliest. It would be open for the State authorities to consider the request of the additional 6[th] respondent to continue the course at **W.A.No.1879 of 2023** **20** Kozhikode, if a seat is available. Pending interlocutory applications, if any, shall stand ## closed. Sd/- **A.J. Desai Chief Justice** Sd/- **V.G. Arun Judge** ## **vpv** **W.A.No.1879 of 2023** **21** ## **`APPENDIX OF WA 1879/2023`** ## **`RESPONDENT ANNEXURES`** |**`Annexure A1`**|**`Letter`**|**`dated`**<br>**`13/02/2023`**<br>**`of`**<br>**`the`**| |---|---|---| ||**`Principal,`**<br>**`Government`**<br>**`Homeo`**<br>**`Medical`**|| ||**`College,`**|**`Trivandrum addressed to the`**| ||**`Principal`**|**`Secretary AYUSH Department`**| ||**`along with translation`**|| |**`Annexure A2`**|**`Decisions`**|<br>**`Of`**<br>**`Prospectus`**<br>**`revamping`**| ||**`committee`**|**`for degree courses of the year`**| ||**`2023 held`**|**`at Muscat Hotel, Trivandrum on`**| ||**`6/12/2023`**|**`at 11 A.M with Translation of`**| ||**`the relevant Paragraph`**||