Sandra S.S. v. Commissioner for Entrance Examinations

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** ## **WP(C).No.21547 OF 2019(P)** ## **PETITIONER/S:** **SANDRA S.S., AGED 19 YEARS, D/O. SAJAN V.O., SREEMANDIRAM, PAATOM, JADAYU, EARTH CENTER, CHADAYAMANGALAM, KOLLAM, PIN-691 534.** **BY ADV. SMT. SURYA BINOY** ## **RESPONDENT/S:** **COMMISSIONER FOR ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURM, PIN-695 001.** **BY SRI. V. MANU, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2019, ALONG WITH W.P.(C) NO.21684/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.21547 & 21684 of 2019 2 ## **JUDGMENT** The captioned writ petitions are filed by the applicants who have applied for MBBS admission as per the KEAM Prospectus-2019, and who have secured admissions in different Medical Colleges, challenging the guidelines issued for mop-up counselling scheduled on 7[th] and 8[th] of August, 2019, to the extent that a student admitted to one Self Financing Medical College will not be permitted to be transferred to another Self Financing Medical College. Therefore, I heard them together and propose to deliver this common judgment. 2. Petitioner in W.P.(C) No.21547 of 2019 has secured rank No.26227 in the National Eligibility cum Entrance Test (UG))-2019 (NEET-2019), conducted by the National Testing Agency for admission to MBBS/BDS Courses in Indian Medical/Dental Colleges, evident from Ext.P1 candidate data sheet issued by the respondent. Pursuant to the options made by the petitioner in six colleges seeking admission for MBBS, petitioner was granted admission at Travancore Medical College, Umayanalloor, Kollam in the phase four allotment in the quota set apart for NRI candidates, evident from Ext.P3. On 30.07.2019, respondent issued a press- W.P.(C) Nos.21547 & 21684 of 2019 3 release, stating that a mop-up counselling for the vacant seats in NRI quota for admission to MBBS seats will be held on 6[th] and 7[th] August, 2019. According to the petitioner, the terms and conditions under which mop-up counselling will take place were not published. However, on 31.07.2019, the respondent published Ext.P7 details of allotment in consecutive phases of allotment to the MBBS course. In Ext.P7, it is stipulated that, candidates who stand admitted under All-India quota MBBS/BDS seats shall not be allowed to participate in the mop-up counselling. Therefore, the candidates who stand admitted to MBBS course under all other categories shall be permitted to take part in the mopup counselling. Along with Ext.P7, the allotment details as on 31.07.2019 was also published, evident from Ext.P8. 3. Case of the petitioner is that, petitioner was legitimately expecting that she will be permitted to take part in the mop-up counselling schedule. However, on 02.08.2019, Ext.P9 press-release announcing the mopup counselling sessions on 7[th] and 8[th] of August was published, also stating that the instructions to the candidates will be published separately. Thereafter, W.P.(C) Nos.21547 & 21684 of 2019 4 on 03.08.2019, Ext.P9(a) notification was issued, from where, it is understood that a student admitted to one Self Financing Medical College will not be permitted to seek transfer to another Self Financing Medical College. Yet another notification viz., Ext.P10 was published on 05.08.2019, reiterating the stipulations. According to the petitioner, the bar against a student opting for a Self Financing Medical College, higher in order of preference, defeats the whole purpose of options and counselling, and if the petitioner is prevented from appearing for the mop-up counselling, the anomalous result would be that a person who has secured lower rank will be admitted to a college of her choice, which is arbitrary and illegal. 4. Likewise, petitioner in W.P.(C) No.21684 of 2019 has secured rank No.2101 in KEAM-2019. In the earlier round of allotment process, on the basis of her rank, admission was secured at M.E.S. College, and petitioner has joined in the said medical college after remitting the required fees. Therein also, petitioner challenges the notification issued by the State Government for mop-up counselling for MBBS Course. W.P.(C) Nos.21547 & 21684 of 2019 5 5. I have heard learned counsel for the petitioners and the learned Senior Government Pleader appearing for the respondents, and perused the pleadings and the documents on record. 6. Ext.P9(a) is the notification issued by the State Government dated 03.08.2019, providing guidelines for mop-up counselling, which read thus: _“(i) In the mop-up counselling, transfer will not be permitted to students from a Government Medical College to another Government Medical College and from a Self Financing Medical College to another Self Financing Medical College._ _(ii) Transfer will be permitted in the mop-up counselling to students admitted in Self Financing Medical Colleges to Government Medical Colleges and vice-versa._ _(iii) Transfer from NRI seat to Government/Minority seat shall be permitted between two Self Financing colleges or in the same college, even if it is for the same course.”_ 7. According to the petitioners, the guidelines so provided by the State Government are arbitrary and illegal, and the classification so done has no reasonable nexus to the object sought to be achieved during the mop-up counselling. It is also contended that, since the petitioners have secured higher ranks, they are entitled as of right to choose the college and course to which they have opted in the applications, and if the choice of a higher rank applicant is not 6 W.P.(C) Nos.21547 & 21684 of 2019 permitted, there is every likelihood of a lower rank candidate securing better options than the petitioners. 8. On the other hand, learned Senior Government Pleader submitted that, this question was considered by a learned Single Judge of this Court in W.P.(C) No.35202 of 2018 and has rendered judgment dated 29.10.2018, holding that the spot admissions are conducted in respect of seats which fall vacant by circumstances which are not foreseen in advance, and the apex court in its decision in ' _**Arvind Kumar Kankane v. State of U.P. and Others**_ ' [2001 KHC 1650] has held that even when a seat becomes vacant after the allotments are complete and is filled up by a candidate who is lower in rank in the merit list, the same can be treated only as fortuitous circumstance and that cannot be a test of unreasonableness of the rule. It is also held by learned Single Judge that, the mere fact that two seats fell vacant during the spot allotment due to the release of the seats for other quotas cannot be a ground to hold that the interdiction in the Prospectus with regard to transfer from one Government Law College to another is unreasonable. W.P.(C) Nos.21547 & 21684 of 2019 7 9. The aforesaid judgment of the learned Single Judge was upheld by a Division Bench of this Court in W.A.No.2230 of 2018 as per the judgment dated 15.11.2018, and held that the petitioner being a candidate who secured allotment to the Government Law College, Trivandrum in the regular online allotment process, had her right to admission recognized through her allotment to the Government Law College in Trivandrum. Although she could have opted for the Government Law College, Ernakulam, which was her preferred choice of Government Law colleges in the State, on account of there being no vacancy during the online allotment process, petitioner could not join the said college. It is further held that, spot allotment is a procedure prescribed to fill up vacancies that remain after the completion of the regular online allotment process, and it is to govern such allotments, the guidelines were issued. That apart, it is held that, there is a rationale for the differential treatment accorded to students who have already obtained admission in a Government Law College/Self Financing Law College when they choose a transfer to a Self Financing Law College/Government Law College. Therefore, it was held that the notification so issued W.P.(C) Nos.21547 & 21684 of 2019 8 for the mop-up counselling cannot be said to be creating any unreasonable classification among the applicants/admitted students. 10. So also, a Division Bench of this Court in the judgment in ' _**Hanna Thasnim v. State of Kerala and Others**_ ' [2014 KHC 210 : ILR 2014 (2) Ker. 388] had occasion to consider whether such classifications made are arbitrary or illegal, and held that, “We are of the view that in the allotment process visualised by Ext.P2, it cannot be said that merit alone is the criterion. Options exercised by candidates definitely have an important role to play in the matter of allotment. Ratio in Asha's case and Priya Gupta's case (supra) can be applied if only the petitioner establishes that her rights according to merit and option have been violated”. 11. So also, the judgment of the apex court in ' _**Veena Guptaner (Dr.) v. University of Delhi**_ ' [1994 KHC 1650 : AIR 1994 Del. 108] is relevant to the context, and a typical question was considered, and held as follows in paragraphs 11 to 13: W.P.(C) Nos.21547 & 21684 of 2019 9 _“_ _**11** . The next question which arises for consideration is as to who are the persons who be considered entitled to take part in the said counselling. Normally, when a seat is available, the same should be included in the initial counselling. If by mistake a seat is not included in the initial counselling then the next question which arises is as to how the said seat should be filled._ _**12** . To find a solution, it is necessary to take an example. If say, one seat of M.D. (Medicine) is available in a good hospital in Delhi and the same is not notified, the effect is that nobody opts for the same. If now the said seat is sought to be offered to all the candidates for counselling, the result would be that all the candidates who took part in the first counselling, should be given a chance, in order of merit, to opt for the same seat. This will start a chain reaction and ultimately there will be one seat more which would become available for the second counselling. There again a chain reaction will start leading to the third counselling. The effect of putting the seat back for counselling for all candidates would, therefore, be to upset the entire counselling which had already taken place. As such, even though it may seem unfair, there is no alternative, apart from leaving the seat unfilled, but to offer the said seat to the wait listed candidates. We are, therefore, of the view that any seat which is available and which has not been included in any of the three counselling by mistake should be filled in order of merit amongst the wait listed candidates._ _**13** . But who are to be regarded as wait listed candidates is the next question. Those candidates who have not been offered any seat or who have not accepted the allotment of any seat during the earlier counsellings will, of course, be regarded as candidates who are wait listed. There are cases where candidates had accepted a seat during counselling and paid the fees but thereafter had not joined the course. In our aforesaid order dated 3[rd] September, 1993, we have permitted all the candidates who have not joined course to take part in the counselling in the All India quota and we give same directions in respect of the local seats as well.”_ W.P.(C) Nos.21547 & 21684 of 2019 10 12. Having evaluated the legal situations discussed above, and the facts and circumstances, I am of the considered opinion that, petitioners having secured admissions in accordance with the options made for the course and college, the contention that they are at liberty again to claim admissions for the options made by them against any inferior rank holder during the mop-up counselling cannot be sustained under law, especially due to the reason that, if such course of actions are entertained, then there is every likelihood of upsetting the entire counselling/admissions already taken place. Moreover, it is to be borne in mind that a Prospectus is issued providing the guidelines for applying to medical admission 2019, in which the modalities are prescribed, and it was accordingly that petitioners have submitted their applications fully knowing well that during the mop-up counselling, there is likelihood of a lower rank holder getting admission in any vacant seats. It is also worthwhile to note, petitioners have no case that when they were admitted to the courses in accordance with the options made by them, seats were remaining vacant in their higher options. Therefore, it cannot be said that there was any arbitrary and illegal W.P.(C) Nos.21547 & 21684 of 2019 11 classification made by the respondent by issuing the notification for mop-up counselling, providing guidelines, prohibiting certain transfers, as is pointed out above. 13. So much so, by permitting transfer from Self Financing Colleges to Government Colleges, the students would be benefited in the matter of course fees. So also is the case with transfer from NRI seat to Government and minority seat between two Self Financing Colleges or in the same college, even if it is for the same course. On the other hand, if the admissions already made otherwise are allowed to be disturbed in order to adjust merit of applicants as per the rank secured or the options exercised, it may lead to disastrous consequences, and the process of admission will become never ending. Therefore, looking from any angle, the classification done for the purpose of spot admission can never be said to be unreasonable, and bad or foul of any of the provisions of the Prospectus and the guidelines issued. **==> picture [395 x 11] intentionally omitted <==** Prospectus-2019, deals with spot allotment, and it is clearly stipulated that, spot allotment/admission for W.P.(C) Nos.21547 & 21684 of 2019 12 filling up the remaining vacant seats, if any, will be conducted after the completion of the Centralised allotment process, and all qualified candidates included in the rank list concerned are entitled to attend the Spot allotment/admission process. However, the eligibility/claims of candidates to participate in a Spot Allotment shall be in accordance with the conditions in the relevant Government Orders/Orders of the Hon'ble Courts, concerned Central Councils. It is also stipulated thereunder that the Commissioner for Entrance Examinations is authorized to issue necessary orders regarding Spot Admission/Allotment in due course, and detailed notification will be issued at the time of allotment. 15. Therefore, it is clear that, an applicant who is applying in accordance with KEAM Prospectus-2019 was well aware that, for the Spot Allotment, the Commissioner for Entrance Examinations is authorized to issue necessary orders regulating the spot allotments. Taking into account all these aspects, I am of the considered opinion that, petitioners have not made out any case of arbitrariness, illegality, unreasonableness or unfairness, justifying interference of this Court W.P.(C) Nos.21547 & 21684 of 2019 13 exercising the power of judicial review under Article 226 of the Constitution of India. The writ petitions fail, accordingly they are dismissed. **Sd/-** **SHAJI P.CHALY JUDGE** St/08.08.2019. W.P.(C) Nos.21547 & 21684 of 2019 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CANDIDATE DATA SHEET ISSUED BY THE RESPONDENT TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE OPTION LIST SUBMITTED BY THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE ALLOTMENT LIST DATED 31.7.2019 ISSUED TO THE PETITIONER. EXHIBIT P4 THE RELEVANT EXTRACT OF THE PROSPECTUS PERTAINING TO SEAT ALLOTMENT PROCEDURE FOR REGISTERING OPTIONS FOR PROFESSIONAL COURSE 2019 (KEAM 2019) BY CENTRALIZED ALLOTMENT PROCEDURE (CAP). EXHIBIT P5 COPY OF THE ALLOTMENT SCHEDULE FOR APPLYING TO NEWLY INDULGED COLLEGES AND FOR REARRANGING/CANCELLING THE OPTIONS REGISTERED NOTIFIED BY RESPONDENT (KEAM-2019) DATED 26.7.2019. EXHIBIT P6 TRUE COPY OF THE PRESS-RELEASE DATED 30.7.2019 ISSUED BY THE RESPONDENT. EXHIBIT P7 TRUE COPY OF THE NOTIFICATION DATED 31.7.2019 BEARING NO.CEE/5454/2018/KEAM2019/TA1. EXHIBIT P8 TRUE COPY OF THE ALLOTMENT DETAILS PUBLISHED BY THE RESPONDENT AS ON 31.7.2019. EXHIBIT P9 TRUE COPY OF THE PRESS RELEASE DATED 2.8.2019. EXHIBIT P9(A) TRUE COPY OF THE NOTIFICATION DATED 3.8.2019 BEARING NO.CEE/5454/2018/KEAM2019/TA1. EXHIBIT P10 TRUE COPY OF THE NOTIFICATION DATED 5.8.2019 BEARING NO.CEE/5454/2018/KEAM2019/TA1. EXHIBIT P11 TRUE COPY OF THE NOC DATED 5.8.2019 ISSUED BY TRAVANCORE MEDICAL COLLEGE, KOLLAM.** RESPONDENT EXHIBIT: NIL //TRUE COPY// P.S. TO JUDGE