Nithin Joseph v. State of Kerala and others

WA.No.470 OF 2021 -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** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** **WA.No.470 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 2161/2021(U) OF HIGH COURT OF KERALA** ## **APPELLANT/S:** **NITHIN JOSEPH AGED 22 YEARS S/O. LATE JOSEPH SEBASTIAN, PUTHENPURACKAL, MANATHOOR, PIZHAKU P.O, KOTTAYAM-686 651** **BY ADVS. SRI.RAFEEK. V.K. SHRI.MANAS P HAMEED SHRI.ELDHO.N.MONCY** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM-695 001** - **3 THE PRINCIPAL, GOVERNMENT LAW COLLEGE, THIRUVANANTHAPURAM, BARTON HILL COLONY, KUNNUKUZHY, THIRUVANANTHAPURAM-695 037** - **4 THE PRINCIPAL, GOVERNMENT LAW COLLEGE THRISSUR, MADONA NAGAR, AYYANTHOLE, THRISSUR-680 003** - **5 THE PRINCIPAL, GOVERNMENT LAW COLLEGE, ERNAKULAM, MARINE DRIVE, ERNAKULAM-682 011** WA.No.470 OF 2021 -2- - **6 THE PRINCIPAL, GOVERNMENT LAW COLLEGE, KOZHIKODE, VELLIMADUKUNNU, MARIKUNNU P.O, KOZHIKODE-673 012** - **7 BAR COUNCIL OF INDIA, REPRESENTED BY ITS CHAIRMAN, NO.21, ROUSE AVENUE, INSTITUTIONAL AREA, NEW DELHI-110 002** - **8 BAR COUNCIL OF KERALA, REPRESENTED BY ITS CHAIRMAN, BAR COUNCIL BHAVAN, HIGH COURT ROAD, KOCHI-682 0231.** - **9 MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O, KOTTAYAM-686 560** - **10 UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, KERALA- 695 034** - **11 UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT RD, THENHIPALAM, KERALA-673 635** ## **OTHER PRESENT:** **R1 TO 6 BY SRI. ARAVIND KUMAR BABU(SR.GP) R7 BY SRI. RAJIT** **R9 BY SRI. ASOK M. CHERIAN, SC R10 BY SRI. THOMAS ABRAHAM, SC R11 BY SRI. P.C. SASIDHARAN, SC** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.470 OF 2021 -3- ## **J U D G M E N T** Dated this the 10[th] day of March, 2021 ## S. Manikumar, C. J. Instant writ appeal has been filed against the judgment dated 26.02.2021 in W. P. (C) No. 2161 of 2021, by which, a learned Single Judge of this Court declined to grant the reliefs sought for, and dismissed the writ petition:- 2. Short facts leading to the filing of the writ appeal are as hereunder:- Appellant was a candidate in the entrance examination conducted by the Commissioner of Entrance Examinations, Thiruvananthapuram, the 2[nd] respondent, for the course of 'Integrated Five Year LLB Course 2020-21'. The appellant secured Rank No.2174 in the said entrance examination. According to the appellant, Bar Council India, the 7[th] respondent, resolved to grant 10% additional seats for LLB courses in WA.No.470 OF 2021 -4- the Law Colleges in the State of Kerala, as a one-time measure, as per the decision of the Council dated 23.09.2020. Thereafter, two spot admissions were conducted in Government Law College, Thiruvananthapuram, Government Law College, Thrissur, and Government Law College Ernakulam. The first spot admission was conducted on 27.10.2020 and the second spot admission was conducted on 30.11.2020. The appellant could not secure admission in the said admission processes. Appellant has submitted that, due to the admission processes going on for other professional courses, vacancies are arising in various Law Colleges in the State. Appellant came to know that there are presently 2 vacancies in Government Law College, Thiruvananthapuram and 4 vacancies in Government Law College, Thrissur, and vacancies will also arise in future. Appellant has further submitted that, despite vacancies in various colleges, the respondents are heading to close the admissions, without conducting further spot admission, to fill up the vacancies. In the said circumstances, appellant has submitted a representation before the Secretary to the Government, Higher WA.No.470 OF 2021 -5- Education Department, Thiruvananthapuram, the 1[st] respondent, and the Commissioner for Entrance Examinations, Thiruvananthapuram, the 2[nd] respondent, requesting to conduct a fresh spot admission, for filling up the vacancies, without closing the admissions. Appellant has also submitted representation dated 25.01.2021 before the Principal, Government Law College, Thiruvananthapuram, the 3[rd] respondent, and the Principal, Government Law College, Thrissur, the 4[th] respondent, seeking the same request. Appellant has contended that, if admissions are closed without filling the vacancies, then it would seriously affect a large number of students, including the appellant, who wish to take up law as their career choice. Hence, conducting a fresh spot admission in the colleges having vacancies, is highly essential. 3. In the said circumstances, appellant filed W. P. (C) No. 2161 of 2021, seeking the following reliefs:- “(i) To issue writ of mandamus or order or direction or any other appropriate writ directing the 1[st] and 2[nd] respondents to identify the vacancies in all the Government Law Colleges in the State with regard to the course of 'Integrated Five Year LLB WA.No.470 OF 2021 -6- Course 2020-21' and to direct respondents 3 to 6, to conduct spot admissions to fill the vacancies expeditiously. ii) To issue writ of mandamus or order or direction or any other appropriate writ directing the respondents not to close the admissions to course of 'Integrated Five Year LLB Course 202021' until all the vacancies are filled by conducting fresh spot admission.” 4. After considering the rival contentions advanced by the learned counsel on both sides, writ court, by judgment dated 26.02.2021 dismissed the writ petition. 5. Being aggrieved, instant writ appeal is filed on the following grounds:- - A. Despite having vacancies in colleges, closing of admissions to - the course of 'Integrated Five Year LLB Course 2020-21' without conducting a fresh spot admissions unfair, unjust and hence unsustainable. - B. It is pertinent to note that there are presently 2 vacancies in - Government Law College, Thiruvananthapuram and 4 vacancies in Government Law College, Thrissur. Closing of WA.No.470 OF 2021 -7- admissions without filling these seats would affect the rights of large scale of students including the appellant who wish to take law as their career. The said conduct of the respondents are violative of Article 14 of the Constitution of India. - C. The respondents are taking hastily steps to close the admissions despite submission of representations before them requesting to conduct fresh spot admission. The respondents are duty bound to consider the same and to take appropriate action as sought in the representations. - D. The learned Single Bench of this Court failed to appreciate the decisions of the Honourable Apex Court in Medical Council of India vs Manas Ranjan Behera (2010 1 SCC 173) and Asha vs Pt. B.D. Sharma University of Health Sciences Ors (2012 7 SCC 389). The learned Single Bench also ought to have considered the decisions in Sandhya M. vs University of Kerala & Ors (2013 2 KHC 396) passed by the High Court of Kerala and Hrushikesh Panda vs State of Odisha & Ors (201 4 II OLR 374). 6. Heard the learned counsel on both sides and perused the WA.No.470 OF 2021 -8- pleadings and material on record. 7. While adverting to the submissions of the learned counsel for the writ petitioner, writ court, at paragraphs 9 and 10 of the judgment in W. P. (C) No. 2161 of 2021 dated 26.02.2021 held thus:- “9. In this case, the learned Government Pleader as well as the learned Standing Counsel for the University would submit that the first semester of course is already coming to an end and even if the petitioner is admitted to the Course, the petitioner will not be able to acquire the requisite number of attendance to complete the semester. 10. The learned counsel for the petitioner would argue that even if the petitioner will not be able to appear for the first semester examination due to want of attendance, he will be able to write the examination and pass the first semester examination also at the end of the second semester. This Court is unable to agree with that proposition, as it will amount to diluting the standards of education. In such circumstances, I do not find any justifiable reason to interfere with the matter at the instance of the petitioner.” 8. Contention of the appellant that he can write the first semester examination, also at the end of the second semester, has been rightly adverted to by the writ court that, without adequate attendance to take WA.No.470 OF 2021 -9- up the examination for the first semester, appellant cannot be permitted to take up both the examinations together, and that it would amount to dilution of standards of education. 9. That apart, appellant, as a matter of right, cannot seek for a writ of mandamus directing the the 1[st] and 2[nd] respondents to identify the vacancies in all the Government Law Colleges in the State, with regard to the course of 'Integrated Five Year LLB Course 2020-21', and to direct respondents 3 to 6, to conduct spot admissions to fill the vacancies expeditiously. 10. For the very same reasons, appellant cannot seek for a mandamus, directing the respondents not to close the admissions to course of 'Integrated Five Year LLB Course 2020-21', until all the vacancies are filled by conducting fresh spot admission. 11. On the aspect as to when mandamus can be issued, we deem it fit to consider few decisions. (i) In **State of Kerala v. A. Lakshmi Kutty** reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that, a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially WA.No.470 OF 2021 -10- enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus. (ii) In **Comptroller and Auditor General of India v. K.S.Jegannathan** , reported in AIR 1987 SC 537 - (1986) 2 SCC 679, a Three-Judge Bench of the Hon'ble Apex Court referred to Halsbury's Laws of England 4[th] Edition, Vol. I, Paragraph 89, about the efficacy of mandamus: "89.Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." (iii) In **Raisa Begum v. State of U.P.** , reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced WA.No.470 OF 2021 -11- must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law. (iv) Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions. (a) In **State of U.P. and Ors. v. Harish Chandra and** Ors., reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as follows: “10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....” (b) In **Union of India v. S.B. Vohra** reported in (2004) 2 SCC 150, the Hon'ble Apex Court considered the said issue and held that,- 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.” (c) In **Oriental Bank of Commerce v. Sunder Lal Jain** reported in (2008) 2 SCC 280, at paragraphs 11 and 12, WA.No.470 OF 2021 -12- the Hon'ble Apex Court held as follows:- “11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: “Note 187.- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been WA.No.470 OF 2021 -13- established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.--......The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.” 12. These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others** , AIR 1977 SC 2149, after referring to the earlier decisions in _Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer, AIR 1966 SC 334; Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, AIR 1962 SC 1210 and Dr. Umakant Saran v. State of Bihar, AIR 1973 SC 964_ , this Court observed as follows in paragraph 15 of the reports : "15. .......... There is abundant authority in favour of the proposition that a writ of WA.No.470 OF 2021 -14- mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. .... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same." (v) When a Writ of Mandamus can be issued, has been summarised in _Corpus Juris Secundum_ , as follows: “Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi- WA.No.470 OF 2021 -15- judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied) 12. Decisions relied on by the learned counsel for the appellant, are not applicable to the facts of this case. In the light of the discussion and decisions, we are of the view WA.No.470 OF 2021 -16- that the appellant has not made out a case to interfere with the impugned judgment in W. P. (C) No. 2161 of 2021 dated 26.02.2021. Accordingly, writ appeal is dismissed. **Sd/-** **S.MANIKUMAR** **CHIEF JUSTICE** **Sd/-** **SHAJI P.CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE