S. Sidarth Nair 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 MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943 WA NO. 1224 OF 2021** ## **AGAINST THE ORDER/JUDGMENT IN WP(C) 18774/2021 OF HIGH COURT OF KERALA, ERNAKULAM** ## **APPELLANT/S:** S.SIDHARTH NAIR AGED 18 YEARS S/O. G.SURESH , SARAYU, VENGOOR ANGAMALY, ERNAKULAM DISTRICT, PIN-683 572, (PASS OUT IN 2021 FROM STANDARD XII, CHAVARA PUBLIC SCHOOL, PALA, KOTTAYAM DISTRICT) BY ADVS. P.M.JOSHI SIJI K.PAUL 1 STATE OF KERALA REP BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION , SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM-695 001 3 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM-695 001 SRI. ASHOK M.CHERIAN, ADDL.AG FOR RESPONDENTS ## **RESPONDENT/S:** THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA NO. 1224 OF 2021** **-2-** ## **JUDGMENT** ## **SHAJI P.CHALY, J.** Petitioner in the writ petition has filed this writ appeal challenging the judgment of the learned Single Judge in W.P.(C).No.18774 of 2021 dated 17.09.2021, whereby, the following reliefs sought for by the appellant in the writ petition were declined and the writ petition was dismissed. “ _For the facts and reasons stated in the Writ Appeal it is most respectfully prayed that this Hon'ble Court may be pleased to direct the 2[nd] respondent to prepare and publish the rank list for admissions to engineering course pursuant to Ext.P3 prospectus solely on the basis of marks obtained by the candidates in the entrance examination conducted for the purpose, pending disposal of the above writ appeal or in the alternative direct the 2[nd] respondent not to publish the rank list for engineering course for the academic year 2021-2022 till the disposal of the above writ appeal, in the interest of justice.”_ Basic facts for the disposal of the appeal are as follows: 2. According to the appellant, he has passed the XII[th] standard in the CBSE syllabus from Chavara Public School, Pala, with 92.6% marks in the year 2021. The minimum qualification required for higher education in the State of Kerala is passing higher secondary education in State syllabus, or higher secondary education in CBSE syllabus or higher secondary education in ICSE syllabus. It is an admitted fact that, as far as professional degree **WA NO. 1224 OF 2021** **-3-** courses in medicine, engineering, architecture etc. are concerned, admissions are regulated on the basis of a rank list prepared through a common entrance examination and the students who secure 45% marks in the XII[th] standard are eligible to apply for the entrance examination. The grievance of the appellant is that, for the admissions in the engineering colleges in the State of Kerala for the academic year 2021-22, it is proposed to render equal weightage of 50:50 to the score obtained in the entrance examination and the marks obtained in the XII[th] standard, which is unjust and illegal in the present scenario of the mode of marks awarded in the XIIth standard of CBSE and ICSE stream due to Covid - 19 pandemic and the way in which the XIIth standard examination was conducted and the marks awarded by the State Board. 3. It is admitted by the appellant that, for engineering admissions, equal weightage of 50:50 score obtained in the entrance examination and the marks obtained in the XIIth standard has been in prevalence from 2011 onwards. According to the appellant, during the 2020-21 academic year, an altogether different situation prevailed as no Plus 2 examination has been conducted for CBSE and ICSE students and instead, marks have been awarded on the basis of the scheme submitted by the CBSE and ICSE. But, in so far as the State syllabus and students are concerned, a name sake examination has been conducted for Plus 2 and a highly liberalized system of evaluation was done in the light of the prevailing pandemic situation, and resultantly, there was no **WA NO. 1224 OF 2021** **-4-** proper evaluation of the academic merit of the students who have completed Plus 2 course during the academic year in question in any of the three basic channels for higher studies. The sum and substance of the contention advanced by the learned Counsel for the appellant is that, the marks of the entrance examination alone ought to have been taken as criteria for drawing up the rank list and providing admissions to various professional courses within the State for the academic year 2021-22. 4. It is an admitted fact that petitioner has participated in the entrance examination in accordance with the stipulations contained in Ext.P3 prospectus issued by the Commissioner for Entrance Examination, Kerala, for the academic year 2021-22 right from the submission of applications till the admissions are made . The modality under which the preparation of the rank list is clearly specified in the prospectus, wherein, it is clearly specified that the rank list would be prepared by giving equal weightage of 50:50 to the score obtained in the entrance examination and the marks obtained in the XIIth standard examination. On a reading of the prospectus, it is clear that the prescriptions therein are made on the basis of a formula of standardization approved by the expert committee constituted by the government. 5. In fact, the State Government has filed a detailed counter affidavit in the writ petition, whereby, it is stated that the Commissioner for Entrance **WA NO. 1224 OF 2021** **-5-** Examinations has invited online application for admission to professional degree courses as per the notification dated 31.05.2021, and the procedure to various professional degree courses for the year 2021 was done as per the provisions in the prospectus for the academic year concerned. It is also pointed out that, as per Clause 1.4(a) of the prospectus, the admission to engineering colleges shall be regulated on the basis of merit as assessed by giving equal weightage of 50:50 to the marks obtained in the entrance examination for engineering (Paper I and Paper II, altogether) and the grade or marks obtained for mathematics, physics and chemistry put together in the final year of the qualifying examination after effecting the standardization procedure as per the formula contained in the prospectus. The other relevant portions of the prospectus are relied upon by the government in order to contend that the petitioner had not made out any case in the writ petition enabling the petitioner to secure any reliefs. 6. Anyhow, the learned Single Judge, after taking into account the provisions of the prospectus and relying upon various judgments of the Apex Court, has arrived at the firm conclusion that the petitioner has not made out any case justifying interference, exercising the power of discretion conferred under Article 226 of the Constitution of India. 7. We have heard learned Counsel for the petitioner Sri. P.M.Joshi and learned Additional Advocate General Sri. Ashok M. Cherian, appearing for the **WA NO. 1224 OF 2021** **-6-** respondents, and perused the pleadings and the materials on record. 8. The basic contention advanced by the learned Counsel for the appellant is that, the learned Single Judge has failed to take note of the fact that the examination conducted by the State Board did not have sufficient standard, and the C.B.SE and I.C.S.E having not conducted any examination for plus 2 and a policy for evaluation was made for assessing the general academic merit of the students for award of marks which cannot be equated with the marks awarded in a regular examination, if standardization as stipulated in the prospectus is done for preparation of the rank list for the professional degree courses, it would materially affect the students who have secured high marks in the qualifying entrance examination conducted as per the prospectus in force . 9. We have evaluated the contentions advanced by the learned Counsel for the petitioner, as well as learned Additional Advocate General, who has advanced arguments relying upon the requirements contained in the prospectus. In our considered opinion, the petitioner has participated in the entrance examination fully knowing well that the standardization of the marks would be done in accordance with the formula fixed by the State Government as per the advice of the expert committee in the year 2011. Basically, the petitioner having participated in the entrance examination knowing fully well the manner in which the rank list would be prepared, **WA NO. 1224 OF 2021** **-7-** cannot turn around and contend that the provisions contained in the prospectus regarding the standardization of the marks of the qualifying examination and the entrance examination is illegal and arbitrary. Which thus means if the petitioner had any objection to the rules contained in the prospectus which is the rule of the game, he ought to have challenged it before participating in the examination . In absentia of any such attempt from the part of the petitioner, the action can only be viewed as an afterthought and making a preparation for a future challenge in the event of any eventualities adverse to the appellant in the admission process. The issue is no more _res integra_ , since the Apex Court had occasion to consider the said legal aspect in its various judgments and it is only appropriate that some of the judgments are referred to, enabling us to arrive at a logical conclusion in respect to the arguments advanced by the petitioner. 10 In _**Dr.G.Sarana v. University of Lucknow and Others AIR**_ _**1976 SC 2428**_ , it was held by the Apex Court that the appellant who knew about the composition of the selection committee and took a chance to be selected, cannot thereafter question the constitution of the committee. In _**Om Prakash Shukla v. Akhilesh Kumar Shukla 1986 supplementary SCC 285**_ , wherein, a three-Judge bench held that, petitioner appeared in the examination without any protest was not entitled to challenge the result of the examination. The same view was reiterated by the Apex Court in _**Madan Lal v. State of J & K (1997) 7 SCC 677**_ , **WA NO. 1224 OF 2021** **-8-** wherein, the Apex Court in paragraph 9 held that, the petitioners who have participated in the written test and oral interview on the basis of the notification issued after the selection procedure is over, is not entitled to attack the constitution of the selection committee. In _**Manish Kumar Shahi v. State of Bihar (2010) 12 SCC 576**_ , the aforesaid principle was reiterated and held that the petitioner who has approached the writ Court under Article 226 of the Constitution of India, after finding that his name does not figure in the merit list prepared by the commission, is not entitled to get any relief. In _**Pradeep Kumar Rai and Others v. Dinesh Kumar Pandy and Others 2015 11 SCC 493**_ , the question considered was in respect of a promotion to a post and the selection process thereto, wherein the Apex Court held that the challenge to selection process after participating in the interview and declaration of adverse result, is not maintainable, since the participation in the selection process was without raising any objections. So also, we find that the prospectus was prepared by the government, taking into account the expert opinion in regard to the manner in which the rank list is to be prepared. In our considered opinion, the contentions raised by the appellant with respect to the manner in which the State Board has conducted the examinations and the evaluation done by the C.B.S.E and the I.C.S.E thus enabling the students to secure more marks due to the peculiar nature of the questions provided and performance assessed, respectively, cannot be verified by the writ court in a proceeding under Article 226 of the **WA NO. 1224 OF 2021** **-9-** Constitution of India. Furthermore, there are no materials produced by the appellant before the writ court even _prima facie_ to establish such an averment made, so as to grant any relief to the appellant, and therefore the writ court was of the clear opinion that the appellant was not entitled to secure any relief there being no arbitrariness or illegality. 11. Taking into account all the above aspects and legal circumstances pointed out above, we have no hesitation to hold that the appellant has not made out any case for interference in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958, there being no error of exercise of the discretionary jurisdiction, or other legal infirmities justifying our interference. Needless to say, the appeal fails and accordingly it is dismissed. **==> picture [483 x 33] intentionally omitted <==** **==> picture [483 x 42] intentionally omitted <==** uu 28.09.2021 **WA NO. 1224 OF 2021** **-10-** ## **APPENDIX OF WA 1224/2021** PETITIONER ANNEXURE Annexure A1 THE RELEVANT PAGES OF THE NEW INDIAN EXPRESS DAILY DATED 28.7.2021