Muhammed Kupparayil v. State of Kerala and Others

_W.A.1588/2022_ -: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 MONDAY, THE 7TH DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944 ## WA NO. 1588 OF 2022 [AGAINST THE JUDGMENTWP(C) NO.33526/2022 DATED 21.10.2022] ## APPELLANT/PETITIONER: MUHAMMED KUPPARAYIL, AGED 19 YEARS S/O. BABU, KUPPARAYIL, MELATH PARAMBU, MOBINA MANZIL, CHERUVANNUR, T.P. ROAD, FEROKE, KOZHIKODE, PIN- 673631, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SANFEER KUPPARAYIL, S/O. SAINUDHEEN HAJI, AGED 44 YEARS, KUPPARAYIL, MELATH PARAMBU, MOBINA MANZIL, CHERUVANNUR, T.P. ROAD, FEROKE, KOZHIKODE, PIN - 673631. BY ADVS. MR. C.M.MOHAMMED IQUABAL MR. P.ABDUL NISHAD MR. RAIHANATH T.H. MR. ISTINAF ABDULLAH ## RESPONDENTS/RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM, PIN - 695001. 2 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS (CEE) 5TH FLOOR, KSHB BUILDING, SS KOVIL ROAD, SANTHI NAGAR, THIRUVANANTHAPURAM, KERALA, PIN - 695001. 3 UNION OF INDIA, MINISTRY OF EDUCATION, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI, PIN - 110001. 4 NATIONAL MEDICAL COMMISSION, REPRESENTED BY ITS SECRETARY, DADA DEV MANDIR, BLOCK P, SECTOR 8 DWARAKA, DWARAKA, NEW DELHI, PIN - 110077. _W.A.1588/2022_ -:2:- - 5 DIRECTORATE GENERAL OF HEALTH SERVICE NIRMAN BHAVAN, RAJPATH AREA, CENTRAL SECRETARIAT, NEW DELHI, PIN - 110001. - 6 MEDICAL COUNSELING COMMITTEE (MCC), DIRECTORATE GENERAL OF HEALTH SERVICE, NIRMAN BHAWAN, RAJPATH AREA, CENTRAL SECRETARIAT, NEW DELHI. PIN - 110001. - ADDL.R7: THE NATIONAL TESTING AGENCY, REPRESENTED BY ITS DIRECTOR GENERAL, C-20,1A/8, SECTOR 62, IITK OUTTREACH CENTRE, NOIDA-201309. *IS SUO MOTU IMPLEADED AS ADDL.R7 AS PER THE ORDER DATED 02/11/2022 IN WA NO.1588/2022. R1 & R2 BY BY SENIOR GOVT. PLEADER SRI. K. P HARISH R3 TO R6 BY ADVS. SRI. JAISHANKAR V. NAIR FOR CGC SMT. MINI GOPINATH - CGC . R7 BY ADV. SRI. S. NIRMAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _W.A.1588/2022_ -:3:- ## **J U D G M E N T** Dated this the 7[th] day of November, 2022 ## **S. Manikumar, CJ** Instant writ appeal is filed against the judgment in W.P.(C) No.33526 of 2022 dated 21.10.2022, by which, a learned single Judge of this Court having declined to grant the reliefs sought for, dismissed the writ petition, holding as under: “2. A perusal of the documents shows that the petitioner's Score Card was published on 7/9/2022, but the caste certificate was obtained only on 21/9/2022. The request for considering him as a reserved category candidate was submitted thereafter, on 19/10/2022. 3. The stand taken by the Commissioner for Entrance Examinations is that sufficient opportunities were granted to all candidates to correct the mistakes by posting a memo in the candidate portal. In the case at hand, not only did the petitioner avail such opportunity, but he even applied for Community Certificate after receipt of his Score Card. Being so, I find no reason to grant the relief sought. The writ petition is accordingly dismissed.” ## 2. Appellant is the petitioner in W.P(C).No.33526 of 2022. In the writ petition, he has sought for the following reliefs: - (i) Declare that the petitioner is entitled to be considered as a candidate under OBC category for the purpose of upcoming NEET(UG)2022 counseling conducted by the Medical Counseling Committee; _W.A.1588/2022_ ## -:4:- - (ii) Issue a Writ of Mandamus or other appropriate writs, directions, or orders directing the respondents 5 & 6 to consider Ext.P3 representation within time frame; - (iii) Issue a Writ of Mandamus or other appropriate writs, directions, or orders directing the respondents to consider the candidature of the petitioner in the OBC category to which, she belongs to as per the Ext.P2 caste certificate; - (iv) Direct the respondents 4 & 5 to permit the petitioner to participate in the upcoming NEET(UG)2022 counseling conducted by Medical Counseling Committee; 3. Short facts leading to filing of the writ petition are that; appellant/writ petitioner is a student, appeared in the NEET test conducted by National Testing Agency, for admission to Medical Colleges in the country, on 17.07.2022. He is stated to have secured 110 marks out of 720. 4. Appellant has further stated that he belongs to Islam-Mappila-OBC community and had mistakenly filled up his communal qualification as 'General' during the application procedure. The mistake, whereby the petitioner erroneously applied under the General Category instead of OBCMappila category, was an inadvertent one. Exhibit-P3 is the request/ representation (e-mail) dated 19.10.2022 submitted by the writ petitioner to the Medical Counseling Committee. There is no dispute that he belonged to OBC and is entitled to appear as an OBC category candidate. Hence, He has _W.A.1588/2022_ -:5:- sought for an opportunity to rectify the _bona fide_ mistake. The petitioner secured 110 marks, which is admittedly above the cut off (93) for OBC and thus, would have been eligible to appear for NEET UG - 2022 Counseling. 5. After considering the material on record, vide judgment in W.P.(C) No.33526/2022 dated 21.10.2022, writ court declined to grant the reliefs sought for by the writ petitioner and dismissed the writ petition, as extracted above. 6. Being aggrieved, instant writ appeal is filed by the writ petitioner on the following grounds: A) Writ court dismissed the writ petition finding that the request of the appellant is highly belated. Writ court ought to have been considered the reason for filing the application to rectify the mistake belatedly. The appellant realized the mistake only on receipt of the admit card. Since the examination was immediately thereafter, he could not submit the application to rectify the mistake immediately realizing the mistake. B) It is submitted that the appellant being a student, was managing the affairs through a Counseling agent. Even though he entrusted the caste certificate to the counseling agent immediately after receipt of the same, he could not submit the same due to the reasons not known to the appellant. The appellant was informed that the counseling agent has not submitted the application to rectify the mistake in time due to an inadvertent omission. _W.A.1588/2022_ -:6:- C) The appellant is hailing from a rural area. Since he belongs to a backward community, he could not score high rank in the entrance examination. Therefore, he is entitled to reservation. Since the appellant could not submit the application in time, his opportunity should not be curtailed. The delay in the part of a student from a backward community is liable to be neglected. D) Writ court ought to have been considered the judgment of the Madras High Court in _**P. Keertana v. The Government of Tamil Nadu and others**_ (W.P.No.25199/2022). In the said decision, the Madras High Court has shown its indulgence to permit the candidate to participate in the upcoming NEET UG Counseling as an OBC candidate despite the candidate therein having applied under the general category by mistake. E) Writ court erred in finding that the Commissioner for Entrance Examination has granted sufficient opportunity to all candidates to correct the mistake by posting a memo in the candidate portal. The case of the appellant is that he realized the mistake only after receiving the admit card. Therefore, the opportunity before issuing the admit card is not sufficient in the case of the appellant. F) Writ court erred in finding that the appellant not only availed the opportunity granted by the Commissioner for Entrance Examination, but has not applied for community certificate, even after receipt of his score card. A student from a Backward Community is not expected to do so. Therefore, the appellant is entitled for the indulgence of this Court under Article 226 of the Constitution of India. G) The learned Single Judge erred in dismissing the writ petition of the appellant even though there is illegality and arbitrariness in non-considering Ext.P3 request filed by the appellant to correct the mistake. H) If the mistake in the application of the appellant is not corrected and he is not permitted to participate in the Counseling, he will be put to much difficulties.” _W.A.1588/2022_ ## -:7:- 7. Based on the above, Mr. C. M. Mohammed Iquabal, learned counsel for the appellant, made submissions. In addition to the above, he relied on the decision of the Madras High Court in W.P. No.25199/2022 dated 19.09.2022, for interference. 8. _Per contra_ , based on the public notice dated 24.05.2022, issued by the National Testing Agency, Mr. S. Nirmal, learned counsel for the 7[th] respondent/NTA, submitted that though sufficient opportunity has been provided to the candidates to make corrections, the appellant has not availed the said opportunity. 9. He further submitted that any change if directed to be made, that would alter the list already made, and affect the counselling process. He also relied on the judgment of this Court in W.A. No.1427/2020 dated 03.11.2020 and judgment of the Delhi High Court in LPA 527/2022 dated 13.09.2022, which were passed in similar circumstances. 10. By way of reply, learned counsel for the appellant submitted that the judgment of this Court rendered earlier, relates to exercising option for a particular course. _W.A.1588/2022_ -:8:- 11. Posed with a question as to how the judgment of Madras High Court is implemented, learned counsel for the appellant submitted that the matter would be examined and appropriate steps taken. 12. Heard the learned counsel for the parties and perused the material on record. 13. Facts are not disputed and there is no need to delve into the same. National Testing Agency - 7[th] respondent has issued a public notice dated 24.05.2022, enabling the candidates to edit/modify their online application form of NEET (UG) - 2022. Public notice issued by the 7[th] respondent is reproduced: ## “ **National Testing Agency** (An Autonomous Organization under the Department of Higher Education, Ministry of Education, Government of India) ## **PUBLIC NOTICE 24 May 2022** ## **Sub: Correction in particulars of the Online Application Form of National Eligibility cum Entrance Test (UG) - 2022 - reg.** In view of numerous representations received from the candidates regarding allowing them to edit/modify their particulars in the Online Application Form of NEET (UG) - 2022, National Testing Agency has decided to provide an opportunity to the candidates for modifying their particulars in the Online Application form of NEET (UG) - 2022. The details of the same are as given below: _W.A.1588/2022_ -:9:- |**Examination**|**Duration for Correction**<br>**in Particulars**|**Fields for**<br>**Corrections**| |---|---|---| |**NEET (UG) - 2022**|**24 May to 27 May 2022**<br>**(up to 09.00 P.M.)**|**As per Annexure-1**| All the registered candidates for the said Examination are advised to visit the website and verify their particulars and are advised to make correction/s in their particulars, in their respective Application Forms, if required. The candidates are allowed to make the corrections, latest by 27 May 2022 (up to 09:00 P.M.). Thereafter, no correction in particulars, whatsoever, will be entertained by NTA under any circumstances. The additional fee (wherever applicable) shall be paid by the candidate concerned either through Credit/Debit Card/Net Banking/UPI and PAYTM. Since it is a one-time facility extended to the candidates to avoid any hardships to them, the candidates are informed to do the correction very carefully, as no further chance for correction will be given to the candidates. Please note that final correction shall be applicable only after payment of an additional fee if required. In case of change in Gender, Category, or PwD, if there is an impact on the fee amount then the Candidate will be charged an excess fee as applicable. Excess payment made will not be refunded, if any. For further clarification related to NEET (UG) - 2022, the candidates can also contact 011 40759000 or email at neet@nta.ac.in. **(Dr. Sadhana Parashar) Senior Director (Exams)** ” 14. Admittedly, the appellant has not availed the above opportunity. That apart, perusal of the documents shows that though score card of the appellant was published on 7.9.2022, the caste certificate has been obtained only on 21.09.2022. The request for considering him in the reserved _W.A.1588/2022_ ## -:10:- category has been submitted only on 19.10.2022. According to the appellant, as he is hailing from a rural area, he could not apply for correction, in time. ## 15. In the judgment dated 19.09.2022 in W.P. No.25199/2022, a learned single Judge of the Madras High Court held as under: ## “ **O R D E R** The petitioner seeks correction of details in her application filed while taking the NEET Examinations. 2.According to the petitioner, she had mistakenly filled up her communal qualification as General. Claiming that he she belongs to OBC category, she wants the correction to be made in the records. The OBC certificate that has been issued to the petitioner is dated 10.09.2022, which is after filing of the application therefore, the correction cannot be made on the basis of the subsequent certificate. 3. However, it is made clear that the petitioner can apply to the designated councilling authorities in the state under the category of MBC. If she belongs to MBC community, the said authority will consider the same. Hence, this Writ Petition is closed with a direction to the said authority to consider the application of the petitioner in the category to which, she belongs to as per the classifications of the state authority. No costs.” ## 16. Further, in the order in C.M.P. No.18508/2022 and W.A. No.2324/2022 dated 01.11.2022, a Hon'ble Division Bench of the Madras High Court ordered as under: _W.A.1588/2022_ -:11:- ## “CMP No.18508 of 2022 and W.A. No.2324 of 2022 ## **THE HON'BLE ACTING CHIEF JUSTICE and** ## **D.KRISHNAKUMAR, J** . (Order of the Court was made by the Hon'ble Acting Chief Justice) Mrs.Sumitha Kumari, Standing Counsel takes notice for National Testing Agency, the first respondent herein. 2. Ms. Vaigai, learned Senior Counsel for the petitioner submitted that the petitioner has fared well in the NEET - UG 2022 Examination held on 17.07.2022 by securing 102 marks, but she was not in possession of “Other Backward Community” Certificate, therefore, she has taken part as a General Category candidate. However, after securing 102 marks in the NEET - UG Examination, she has come to know that the cut-off mark for OBC Category is between 93 and 104 marks. Therefore, she has filed the writ petition seeking a Writ of Mandamus directing the respondents to treat her candidature as OBC Category and permit her to participate in the upcoming NEET – UG 2022 Counselling. The learned Single Judge has held that the petitioner has obtained OBC Certificate only on 10.09.2022, which is after the filing of the application and therefore, she is not entitled to get the relief. 3. Learned Senior Counsel for the petitioner drawing the notice of the court to the following condition, ## “ **6.2.2 For candidates claiming the OBCNCL** ## **Category** OBC-NCL Certificate (Appendix-XA) needs to be uploaded in the Online Application Form of NEET (UG) 2022 which should have been issued on or after 01 January 2022, in consonance with the latest guidelines of the Government of _W.A.1588/2022_ -:12:- India. If any OBC-NCL candidate fails to upload the OBC-NCL certificate (issued on or after 01 January 2022) at the time of online registration, the candidate has to upload a declaration (Declaration in lieu of OBC-NCL Certificate as per Appendix-XB) to that effect. Visit http://www.ncbc.nic.in for the latest guidelines and updates on the Central List of State-wise OBCs.” submitted that when the petitioner has obtained OBC Certificate on 10.09.2022, in all fairness, the request of the petitioner ought to have been accepted. Therefore, the writ appeal has been filed. 4. As the petitioner has secured 102 marks in the NEET UG Examination held on 17.07.2022, she comes within the zone of consideration under the OBC Category, hence the Medical Counselling Committee, Directorate General of Health Services, the second respondent herein, is directed to consider the request of the petitioner for changing her category from General Category to Other Backward Community as per the notification, in the counselling that is scheduled to take place on 02.11.2022. 5. The impleading petition is ordered. 6. The above direction is subject to the outcome of the Writ Appeal. 7. Post the writ appeal on 10.11.2022. (T.R., ACJ.) (D.K.K., J.) 01.11.2022” 17. Though Mr. Mohammed Iquabal, learned counsel for the appellant, relied on the decision of the Madras High Court, stated above, it is trite law that decision of the Kerala High Court in **Karthik B. v. Principal** _W.A.1588/2022_ -:13:- ## **Secretary, Higher Education Department and Others** , [judgment dated 03.11.2020 in W.A. No.1427 of 2020], is binding on us. ## 18. In **Karthik B. v. Principal Secretary, Higher Education Department** **and Others** (cited supra), this Court held as under: “26. Material on record discloses that as early as on 07.11.2019, instructions have been issued to the candidates, for exercising option. There is no dispute that even in the prospectus, there is a clear condition, as to the exercise of option. In Exhibit-P5 notification dated 14.09.2020, it is also specifically stated in clause (1) that the candidates, who have already submitted application from 01.02.2020 to 25.02.2020 to the 2[nd] respondent, under KEAM 2020, as per the notification dated 31.01.2020, for any of the courses such as Engineering/Architecture/ Pharmacy/Medical & Allied courses should not submit fresh applications for admission to Architecture/Medical & Allied Courses. For the reasons best known to the appellant, he had conveniently omitted to take notice of the said notification. 27. Allotment proceedings for Medical and Allied Courses on the basis of NEET (UG) – 2020 would be over by 06.11.2020, which means that the process due for enlisting, for admission to Medical and allied courses, has already commenced, and scheduled to be completed by 05.11.2020. As rightly observed by the writ court, interpolation at this stage, by giving an opportunity to a candidate, who has failed to exercise the option, would amount to altering the conditions in the prospects, which this Court under Article 226 of the Constitution of India, cannot do. ## **28. It is trite to say that, prospectus and notifications issued by the Government, binds all the** _W.A.1588/2022_ -:14:- **parties, including the appellant. If option is not exercised in time, then, there is no right to demand, consideration of the application, or to exercise option, at any time, at the will of a candidate. Time schedule, in terms of the prospectus and notifications, issued from time-to-time, have to be strictly adhered to by all. Consequences for not exercising the option, need not be specifically stated** . 29. Though the learned counsel for the appellant relied on the decisions of the Hon'ble Supreme Court in _**Shamsher Singh**_ (cited supra) and _**M. Siddiq (Ram Janmabhoomi Temple Cases)**_ (cited supra), we are of the view that the said decisions are not applicable to the case on hand. **30. On more than one occasion, time has been extended by the 2nd respondent, for exercise of option by the appellant. As rightly contended by the learned Senior Government Pleader, the 2nd respondent has to abide by the time schedule already fixed and complete the entire process, within the stipulated date, in accordance with ' the directions of the Hon ble Supreme Court** . In the light of the above discussion, we find no error in the impugned judgment, warranting interference in appeal. Writ appeal is dismissed. No costs.” (emphasis supplied) ## 19. In LPA No.527/2022 [ _**Shyam Sunder v. Union of India and Anr**_ .] ## dated 13.9.2022, a Hon'ble Division Bench of Delhi High Court held as under: “12. Material on record discloses that initially there was no provision for any correction in the application form and all the candidates were requested to fill the application form with care. It was categorically stated in the application form that no correction will be permitted once the application form is submitted. Nevertheless, due to _W.A.1588/2022_ -:15:- numerous representations received from candidates, as a onetime measure, a public notice dated 06.04.2022 was issued by Respondent No.2. 13. A perusal of the notice dated 06.04.2022 specifies that the candidates were allowed to make corrections in their application form by 08.04.2022 and the notice stated that after 08.04.2022, no correction in particulars, whatsoever, would be entertained by Respondent No.2 under any circumstances. 14. The opportunity granted by Respondent No.2 was not availed by Appellant's son. A candidate cannot claim any right to correct the particulars filled in the application form. Though the courts have permitted candidates to correct certain bona fide/inadvertent mistakes, but it has been done only in extraordinary circumstances. 15. In this case, the Appellant's son has been negligent in not filling up the form correctly at the first instance and further not availing the opportunity which was extended by Respondent No.2, giving one more opportunity to correct the application form. 16. As has been rightly observed by the learned Single Judge, Respondent No.2 prepares the result on a percentile basis, which means that these scores are normalized across multi session papers and the ranks are based on relative performance of all persons who appear for the examination in one session. The score is not the same as percentage of marks obtained and also is not an aggregate or average of individual subjects. 17. As rightly pointed out, the JEE examination is taken by lakhs of students and since the results have been declared on the basis of percentile scores, the Appellant's son cannot be now permitted to change his category as it will result in redrawing of the entire results which will have a ripple effect of upsetting the entire selection process and allocation of seats to other OBC candidates. The said _W.A.1588/2022_ -:16:- examination process cannot be tinkered with lightly. Resultantly, this Court does not find any merit in the appeal. 18. The LPA is dismissed. Pending applications, if any, stand disposed of.” 20. In the light of the above discussion and the decision of this Court, extracted above, we are not inclined to interfere with the impugned judgment. Writ appeal is dismissed. No costs. Sd/- S. Manikumar, Chief Justice Sd/Shaji P. Chaly, Judge sou & krj. //true copy// P.A. To C.J.