Reshma Raveendran v Malabar Medical College Hospital & Research Centre & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945** **WP(C) NO. 35915 OF 2023** ## **PETITIONER:** **RESHMA RAVEENDRAN AGED 29 YEARS D/O RAVEENDRAN, HAVING PERMANENT RESIDENCE AT SEETHALAYAM, 108, KALLUVETTAMKUZHY, THINKALKARIKKAM VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT, KERALA, PIN - 691310** ## **BY ADV A.B.MOHANAKUMAR** ## **RESPONDENTS:** **1 THE MALABAR MEDICAL COLLEGE ATHOLI SO, CALICUT- REPRESENTED BY THE PRINCIPAL, PIN - 673315 2 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, STATUE, THIRUVANANTHAPURAM, PIN - 695001 3 THE COMMISSIONER OF ENTRANCE EXAMINATIONS(CEE) OFFICE OF CEE, 7TH FLOOR, KSRTC BUS TERMINAL COMPLEX, THAMPANOOR, THIRUVANANTHAPURAIN, PIN - 695001** - **4 VISHNU PREMRAJ POST GRADUATE STUDENT, DEPARTMENT OF ENT, MALABAR MEDICAL COLLEGE, ATHOLI SO, CALICUT, PIN - 673315** **BY ADVS. VINOD BHAT S ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R V.NAMITHA SRI.P.G.PRAMOD, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2023, ALONG WITH WP(C).36552/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NOS.35915 & 36552 OF 2023 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA,** **1945** **WP(C) NO. 36552 OF 2023** ## **PETITIONERS:** - **1 MALABAR MEDICAL COLLEGE HOSPITAL & RESEARCH CENTRE MODAKKALLUR, ULLIYERI, KOZHIKODE. REPRESENTED BY ITS CHAIRMAN, V. ANILKUMAR, PIN - 673323** - **2 V.ANILKUMAR AGED 54 YEARS** **SON OF CHATHUKUTTY, CHAIRMAN, MALABAR MEDICAL COLLEGE HOSPITAL & RESEARCH CENTRE, RESIDING AT A2, JAWAHAR NAGAR COLONY, SALES TAX OFFICE ROAD, KOZHIKODE., PIN - 673004** - **3 DR.VISHNU PREMRAJ AGED 29 YEARS** **S/O ARAHANT, NEAR KADALAYI SREEKRISHNA TEMPLE, CHIRAKKAL, KANNUR-, PIN - 670011** **BY ADVS. S.VINOD BHAT ANAGHA LAKSHMY RAMAN GREESHMA CHANDRIKA.R V.NAMITHA** ## **RESPONDENTS:** - **1 NATIONAL MEDICAL COMMISSION POCKET-14, SECTOR-8, DWARAKA PHASE-1 NEW DELHI110077.REPRESENTED BY ITS CHAIRMAN., PIN - 110077** - **2 MEDICAL ASSESSMENT AND RATING BOARD NATIONAL MEDICAL COMMISSION (NMC), POCKET-14, SECTOR-8, DWARAKA, PHASE-1, NEW DELHI. REPRESENTED BY ITS PRESIDENT, PIN - 110077** **WP(C) NOS.35915 & 36552 OF 2023 3** **3 COMMISSIONER FOR ENTRANCE EXAMINATIOINS OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, 7TH FLOOR, KSRTC BUS TERMINAL COMPLEX, THAMPANNOOR, THIRUVANANTHAPURAM-, PIN - 695001** **4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001** **SRI.P.G.PRAMOD, GP SRI.TITUS MANI VETTOM, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2023, ALONG WITH WP(C).35915/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NOS.35915 & 36552 OF 2023 4** ## **T.R. RAVI, J.** **--------------------------------------------** W.P.(C)Nos.35915 and 36552 of 2023 -------------------------------------------Dated this the 23[rd] day of November, 2023 ## **JUDGMENT** The issue relates to admission to Post Graduate Medical Course in Otorhinolaryngology. This Court had by order dated 19.10.2023 in W.P(C).No.34757 of 2023, considered the request of the Malabar Medical College Hospital and Research Centre for interim direction to include the College for the purpose of allotment during the stray vacancy round to the one seat in MS(ENT) provisionally, since the process of affiliation was underwent, and ordered as follows: “This Court is aware that admissions cannot be made without affiliation for a seat. This Court is also aware of the fact that the Regulation of the University prohibits admission anticipating affiliation. However, taking into account the circumstances of this case, where the petitioners had approached this Court much earlier and directions had also been issued, there will be an interim direction to the 4th respondent to include ## **WP(C) NOS.35915 & 36552 OF 2023 5** the 1st petitioner College for the purpose of allotment during the stray vacancy round to the one seat in MS(ENT) provisionally. The candidates, who are seeking admission should be informed that the affiliation process is not yet over and that the admission is subject to affiliation being granted to the University. The petitioners shall not take any fee from the students allotted by the 4th respondent till a positive order of affiliation is issued by the University”. 2. The order was issued on 19.10.2023. The order was issued on the premise that the stray vacancy allotment was between 17.10.2023 and 20.10.2023. Since the official respondents did not act on the interim order and the seat was not made available on 20.10.2023 in the website, the College appears to have proceeded to admit a student based on merit on 20th in order to ensure that admission was made within the time stipulated. Such a course of action had not been ordered in the interim order dated 19.10.2023. According to the College, it was the intention of this Court to ensure that the seat was made available once the affiliation is granted and a student is also admitted to the said seat without violating the time frame fixed by the **WP(C) NOS.35915 & 36552 OF 2023 6** Hon'ble Supreme Court. It so happened that on 17.10.2023 itself when the stray vacancy round was ordered by the Medical Counselling Committee, the date fixed was actually 17.10.2023 to 25.10.2023. On 21.10.2023, the Commissioner of Entrance Examination issued orders extending the period for filling up seats in the stray vacancy round till 25.10.2023, based on the notice which had been issued by the Office of the MCC on 17.10.2023. The Commissioner has also issued the list of vacancies which are available for filling up under the stray vacancy round on 21.10.2023, wherein the Malabar Medical College Hospital and Research Centre was included for one seat in Otorhinolaryngology specifically stating that it is provisional and subject to the result of W.P(C).No.34757 of 2023. Based on the inclusion of the College the petitioner in W.P(C).No.35915 of 2023 sought admission as she belongs to a Scheduled Caste Community and the seat had been reserved as per the roster to Scheduled Caste candidates. The question now to be decided is whether the person who was granted admission on 20.10.2023 by the College or **WP(C) NOS.35915 & 36552 OF 2023 7** whether the petitioner in W.P(C).No.35915 of 2023 who has approached the College on the basis of the inclusion of the College in the stray vacancy round as per notification issued by the CEE is to be preferred for admission. The Counsel for the College and the student who was admitted by the College submitted that the admission was not owing to any fault on their part and it was only owing to the reason that the official respondents did not include the College for allotment as directed by this Court on 20.10.2023 and at that point of time the period of the stray vacancy round had not been extended till 25.10.2023. The Counsel for the petitioner in W.P(C).No.35915 of 2023 on the other hand submits that as far as the College is concerned, as on 20.10.2023 there was no vacancy available for the said course going by the website of the official respondents and as such no admission could have been made. It is submitted that the inclusion was only on 21.10.2023 and the petitioner in W.P(C).No.35915 of 2023 alone was eligible for the said course being a candidate belonging to a Scheduled Caste Community. It is submitted that the admission if at all **WP(C) NOS.35915 & 36552 OF 2023 8** granted to a student on 20.10.2023 is void _ab initio_ since there was neither seat available nor was the admission granted to a person belonging to the Scheduled Caste Community who alone would have been entitled to the seat as per the roster which was published on 21.10.2023. The Government Pleader submitted that on 21.10.2023, the period of stray vacancy round was extended based on the notice of the MCC which provided time till 25.10.2023 and also based on the fact that there were vacancies available even on 21.10.2023. The Counsel for the College had raised a contention that the petitioner in W.P(C).No.35915 of 2023 cannot be granted admission at this stage because the period fixed is already over and no admission can be granted beyond the date. It is hence submitted that the student who was admitted by the College should be preferred. 3. I have considered the rival contentions. This Court on 19.10.2023, had directed the provisional admission to be granted and that too without taking any fee from the candidate for a seat for which affiliation is yet to be granted ## **WP(C) NOS.35915 & 36552 OF 2023 9** by the University. This Court was aware of the level to which directions can be issued and the only reason for directing inclusion of the College was that there was a likelihood of the affiliation being granted and that a medical seat need not go waste for an academic year. This Court had not granted any permission to the College to make an admission on its own, if the interim order is violated. As such, the contention of the College that an admission was granted on 20.10.2023 to save the situation of a seat being lost, cannot be accepted. As per the guidelines for the stray vacancy round, all applications received till the last date of the round are to be considered and the better student has to be admitted. There is no choice for admitting on a 'first come first serve' basis. In the above circumstances, the application of the person who was already admitted by the College and the request of the petitioner in W.P(C).No.35915 of 2023 have to be considered on 25.10.2023 and the better claimant alone could have been admitted. If such a procedure is followed as on 25.10.2023 the petitioner in W.P(C).No.35915 of 2023 alone could have ## **WP(C) NOS.35915 & 36552 OF 2023 10** been preferred, since as per the roster, a seat has to be reserved to be filled up from among the Scheduled Caste Community candidates. 4. In **Asha v. Pt.B.D.Sharma University of Health Sciences and Others [2012 KHC 4360],** the Hon'ble Supreme Court considered the question whether an admission can be granted after the cut off date and has held that where no fault is attributable to a candidate, the cut off date cannot be used as a technical instrument or tool to deny admission to a meritorious student. In the case on hand, as on 25.10.2023 the petitioner in W.P(C).No.35915 of 2023 alone was the eligible candidate but admission had been denied, stating that the seat was already filled up by an admission which was carried out on 20.10.2023. No fault can hence be attributed to the petitioner in W.P(C).No.35915 of 2023. In the above circumstances, W.P(C).No.35915 of 2023 stands allowed. There will be a direction to the 1st respondent to admit the petitioner in W.P(C).No.35915 of 2023 for the PG Medical Seat for MS(Otorhinolaryngology) **WP(C) NOS.35915 & 36552 OF 2023 11** provisionally, subject to the result of W.P(C).No.34757 of 2023. Necessary orders shall be issued within one week from today. Since I have already held that the petitioner in W.P(C).No.35915 of 2023 is the person who is entitled to admission, W.P(C).No.36552 of 2023 which has been preferred by the College and the Student who has been granted admission by the College stands dismissed. **Sd/-** **T.R.RAVI JUDGE** LEK ## **WP(C) NOS.35915 & 36552 OF 2023 12** ## **APPENDIX OF WP(C) 35915/2023** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE PETITIONER'S MBBS CERTIFICATE DATED 29-04-2019 ISSUED BY THE KERALA UNIVERSITY OF HEALTH SCIENCES, THRISSUR, KERALA-680596** - **Exhibit P2 TRUE COPY OF PETITIONER'S CERTIFICATE OF REGISTRATION DATED 02-09-2019 ISSUED BY TRAVANCORE-COCHIN COUNCIL OF MODERN MEDICINE** - **Exhibit P3 TRUE COPY OF THE STRAY VACANCY FILLING DETAILS PUBLISHED BY CEE DATED 17-03-2023, PUBLISHED IN THE WEBSITE OF CEE FOR THE YEAR 2023** - **Exhibit P4 TRUE COPY OF GUIDELINES REGARDING THE MODE OF SELECTION OF CANDIDATES FOR STRAY VACANCY FILLING ROUND PUBLISHED BY CEE DATED 17-10-2023 ITSELF , ALONG WITH EXHIBIT P3** - **Exhibit P5 TRUE COPY OF THE SRAY VACANCY FILLING LIST DATED 21-10- 2023 PUBLISHED ON 2110-2023 ON CEE OFFICIAL WEBSITE** - **Exhibit P6 TRUE COPY OF TIME EXTENSION NOTIFICATION DATED 21-10-2023 PUBLISHED BY CEE** - **Exhibit P7 TRUE COPY OF COMMUNITY CERTIFICATE DATED 25-02-2022 ISSUED FROM TALUK OF F LICE, PUNALUR** - **RESPONDENT ANNEXURES** - **Annexure R3(a) TRUE COPY OF THE INTERIM ORDER DATED 19.10.2023. IN W.P.(C) NO. 34757/2023** - **Annexure R3(b) TRUE COPY OF THE G.O.(RT) NO.2769/2023/H AND FWD DATED 21.10.2023.** **WP(C) NOS.35915 & 36552 OF 2023 13** **Annexure R3(c) TRUE COPY OF THE E-MAIL COMMUNICATION DATED 21.10.2023. Annexure R3(d) TRUE COPY OF THE E-MAIL COMMUNICATION DATED 24.10.2023.** ## **PETITIONER EXHIBITS** **Ext.R1(a) COPY OF ORDER DATED 23-03-2012 IN I.A.16/2012 IN CIVIL APPEAL NO. 1944/1993 OF SUPREME COURT OF INDIA** **Ext.R1(b) COPY OF ORDER DATED 09-05-2017 IN W.P. (C) 267/2017 OF SUPREME COURT OF INDIA** ## **WP(C) NOS.35915 & 36552 OF 2023 14** ## **APPENDIX OF WP(C) 36552/2023** ## **PETITIONER EXHIBITS** - **Exhibit P1 COPY OF THE ORDER DATED 19-10-2023 IN WP(C) 34757/2023 OF HIGH COURT OF KERALA** - **Exhibit P2 COPY OF TIME SCHEDULE PRESCRIBED BY THE 1ST RESPONDENT FOR COMPLETION OF PG EDICAL COUNSELLING AND ADMISSION FOR 2023-2024** - **Exhibit P3 COPY OF NOTIFICATION DATED 17-10-2023 ISSUED BY THE 3RD RESPONDENT** - **Exhibit P4 COPY OF GUIDELINES ISSUED BY THE 3RD RESPONDENT DATED 17-10-2023** - **Exhibit P5 COPY OF E-MAIL LETTER DATED 21-10-2023 OF PRINCIPAL OF 1ST PETITIONER TO 3RD RESPONDENT WITH THE REPLY E-MAIL OF 3RD RESPONDENT** - **Exhibit P6 COPY OF RELEVANT PAGES OF LIST OF ELIGIBLE STUDENTS PUBLISHED BY 3RD RESPONDENT** - **Exhibit P7 COPY OF LIST OF SELECTED/REJECTED STUDENTS OF THE 1ST PETITIONER COLLEGE** - **Exhibit P8 COPY OF NOTIFICATION DATED 21-10-2023 OF 3RD RESPONDENT** - **Exhibit P9 COPY OF VACANCY LIST PUBLISHED BY THE 3RD RESPONDENT DATED 21-10-2023** - **Exhibit P10 COPY OF LETTER DATED 23-10-2023 WRITTEN BY THE 1ST PETITIONER TO THE 3RD RESPONDENT** - **Exhibit P11 COPY OF THE ORDER/LETTER DATED 25-102023 OF 3RD RESPONDENT** **WP(C) NOS.35915 & 36552 OF 2023 15** |**Exhibit P12**|**COPY OF E-MAIL SENT BY THE 3RD**| |---|---| ||**RESPONDENT TO THE 1ST PETITIONER**| |**Exhibit P13**|**COPY OF LETTER DATED 25-10-2023 WRITTEN**| ||**BY THE 1ST PETITIONER TO THE 3RD**| ||**RESPONDENT**|