SHAHSAD P., SHABEER ALI K., NIHILA P.P. v. Medical Counseling Committee (MCC), National Medical Commission, Union of India, Government of Kerala and others

W.A. No. 1692/2020 : 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 TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942 ## WA.No.1692 OF 2020 AGAINST THE JUDGMENT IN WP(C) 27304/2020(K) OF HIGH COURT OF KERALA ## APPELLANTS/PETITIONERS: |1||SHAHSAD P.| |---|---|---| |||AGED 20 YEARS| |||S/O.SOUJA P.P., SHAHSAD MANZIL, CHERAKKARA BY-PASS| |||JUNCTION, KOVILAKAMKUNDU, MANJERI P.O., MALAPPURAM| |||DISTRICT.| |2||SHABEER ALI K.| |||AGED 20 YEARS| |||S/O.ABDUL SALEEM K., KALANGADAN HOUSE, ALAKKAPARAMB,| |||P.O. MOONIYUR, MALAPPURAM 676 311.| |3||NIHILA P.P.| |||AGED 19 YEARS| |||D/O.BASEER P.P., 'IHSAN', AGRASALA, PALLIKKAL POST,| |||MALAPPURAM DISTRICT 673 634.| |||BY ADVS.| |||SRI.K.JAJU BABU (SR.)| |||SMT.M.U.VIJAYALAKSHMI| |||SRI.BRIJESH MOHAN| |DENT/S|:|| |||| |1||THE MEDICAL COUNSELING COMMITTEE(MCC)| |||REP. BY THE DIRECTOR GENERAL OF HEALTH SERVICES (DGHS),| |||MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF| |||INDIA, NEW DELHI 110 011.| |2||NATIONAL MEDICAL COMMISSION,| |||POCKET -14, SECTOR-8, DWARAKA PHASE -1, NEW DELHI 110 077,| |||REP.BY ITS SECRETARY.| |3||UNION OF INDIA| |||REP.BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF| |||HEALTH AND FAMILY WELFARE, NEW DELHI 110 011.| ## RESPONDENT/S: W.A. No. 1692/2020 : 2 : 4 GOVERNMENT OF KERALA REP.BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 036. SRI.TITUS MANI, SC FOR R1, SRI.JAISHANKAR V NAIR, CGC FOR R2 AND R3 SRI. ARAVINDA KUMAR BABU, SR. GP FOR R4 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 1692/2020 : 3 : ## **Dated this the 15[th] day of December, 2020.** ## **JUDGMENT** ## **SHAJI P. CHALY, J.** The appeal is filed by the petitioners in the writ petition challenging the judgment of the learned single Judge dated 08.12.2020 in W.P.(C) No. 27304 of 2020. 2. The learned single Judge, after considering the issues raised by the appellants relating to the third round counselling in regard to the admission to the undergraduate medical courses on the basis of the National Entrance cum Eligibility Test and taking into account the judgment of the Apex Court in _**Neelu Arora (Ms) and Another v. Union of India and others**_ [(2003) 3 SCC 366], has held as follows at paragraphs 7 and 8: “7. The learned Senior counsel pointed out that when the Students from Rajastan approached the Apex Court pointing out the delay caused in the counselling in the 85% quota in other States, the Apex Court as per Ext.P9 judgment directed that the petitioners have to approach the High Court of the State and that the writ petition was filed accordingly before this Court. 8. Having considered the contentions advanced by both sides, it is seen that a third counselling/allotment or a mop-up counselling is W.A. No. 1692/2020 : 4 : not envisaged for admission to All India Quota in any of the judgments of the Apex Court. In view of the directions in the judgments in Neelu Arora's case (supra) as well as the interim orders passed in Assn. of Private Medical & Dental Colleges of Chhattisgarh's case (Supra), writ petition is dismissed.” It is, thus, challenging the legality and correctness of the said judgment, the appeal is preferred. 3. Basic facts for the disposal of the appeal are as follows: The appellants appeared in the National Entrance cum Eligibility Test (NEET) (UG) 2020 and secured 610, 608 and 606 marks out of 720. The grievance voiced by the appellants was that on account of the delay in completing the first allotment for admission to the 85% seats in undergraduate courses in Medicine allotted as the State quota in different States other than Kerala, Rajasthan and Haryana, they will be denied the opportunity for admission against the 15% seats in the All India Quota. 4. In fact, Ext.P5 schedule for online counselling for All India quota was published by the Medical Counselling Committee in October, 2020. The first and second allotments were scheduled to be held on 05.11.2020 and 27.11.2020 respectively. However, many States failed W.A. No. 1692/2020 : 5 : to complete their first allotment before the completion of the second allotment of the All India Quota. The facts and figures with respect to the admission process in various States and the consequential adverse chain reaction in regard to the admission to the All India Quota are all attempted to be demonstrated by the appellants. According to the appellants, in most of the States, the allotment to the State quota is not complete. Therefore, they apprehend that the students who opted for first and second allotments in All India Quota and who would be joining the State seats would be excluded and a fresh allotment is to be made to enable the eligible candidates like the appellants to have secured high marks in NEET (UG) to have availed the opportunity to participate in the admission process towards 15% All India Quota. 5. It is also submitted that a large number of seats would be reverted to the State quota this year defeating the very intention of the Hon'ble Supreme Court to ensure that a very few seats are reverted to the State quota and that the All India Quota seats are filled by the students from All India merit list only. It is also pointed out that the last candidate who got allotment in All India Quota in general merit is having 611 marks as is evident from Ext.P6 list of undergraduate Medical/Dental seats allotment, 2020 (round 2). 6. The sum and substance of the contentions advanced before W.A. No. 1692/2020 : 6 : the writ court as well as in this appeal is that the appellants who scored high marks have got every chance for admission, in case the allotments were made in accordance with Ext.P5 Schedule for Online Counselling (Allotment Process) for NEET 15% AIQ/DEEMED/CENTRAL UNIVERSITIES/AIMS and JIPMER/ESIC and AFMC (MBBS/BDS) Seats2020. It is also submitted that on account of the failure to reckon those students who are likely to join the State seats while finalising the second round of allotment towards 15% quota, a large number of meritorious students, like the appellants, who seek admission in the 15% All India Quota, would be denied their opportunity. 7. It was also contended that as per the decision of the Apex Court in _**Assn. of Private Medical and Dental Colleges of Chhatisgarh v. State of Chhattisgarh**_ [(2017) 8 SCC 638] the intention behind the directions issued by the Apex Court regarding the common Counselling procedure are to see that minimum number of seats are reverted to the State quota and in order to ensure the same, a third allotment or a mop-up allotment is to be conducted for admission to the All India Quota, in view of the delay caused in completing the counselling in other States and in that event, the appellants would get an opportunity to participate in the same. Even though a representation was submitted by the appellants before the W.A. No. 1692/2020 : 7 : Government of India requesting to act accordingly, no action was taken so far. This was the backdrop of the case of the appellants . 8. The learned Standing Counsel for the Medical Council of India submitted that in view of the judgment of the Apex Court in _Neelu Arora_ (supra), a third round of counselling is not intended or permitted by the Apex Court for admission to the All India Quota and that a similar claim for third round of counselling pointing out the difficulties faced by the meritorious students was rejected by the Apex Court. 9. The learned Central Government Counsel has also submitted that since a full fledged scheme is provided by the Apex Court in _**Neelu Arora**_ (supra) in regard to the manner in which the admissions are to be made, no other alternative is possible without the alteration of the said scheme by the Apex court. 10. We have heard the learned Senior Counsel for the appellants Sri. K. Jaju Babu assisted by Adv. Brijesh Mohan, Sri. Jaishankar V. Nair, CGC, Sri. Titus Mani Vettom for the Medical Commission of India and Sri. Aravinda Kumar Babu, learned Senior Government Pleader, and perused the pleadings and materials on record. 11. Learned Standing Counsel for the National Medical W.A. No. 1692/2020 : 8 : Commission submitted that time for counselling and consequential admission is decided by the Director General of Health Services, Ministry of Health and Family Welfare. 12. The question crops up for consideration is whether any manner of interference was possible on the part of the writ court to consider the matter on merits. 13. A reading of the judgment in _**Neelu Arora**_ makes it clear that peremptory directions are issued by the Apex Court in regard to the admissions under the All India Quota. In order to have a clear view, the directions issued by the Apex Court at paragraphs 3 to 6 are relevant and they read thus: **3.** This Court in _Pradeep Jain (Dr)_ v. _Union of India_ [(1984) 3 SCC 654] and _Dinesh Kumar (Dr)_ v. _Motilal Nehru Medical College_ [(1986) 3 SCC 727] while disapproving of the total reservation on different scores in regard to admission of students in medical courses such as MBBS and postgraduate specialities, stated that “the very mandate of the equality clause viewed in the perspective of social justice would justify some extent of reservation preferences for students passing the qualifying examination”. The primary consideration in formulating the scheme for creating a reservation in favour of candidates is broadly based on national approach as against the State-based reservation. This background resulted in the formulation of the Scheme, which is sought to be interpreted or modified now. We should not read the schemes framed by this Court as if they are statutes or that inexorable rights are conferred upon the parties. For the academic year 2001-02, 1483 W.A. No. 1692/2020 : 9 : seats for MBBS course and 146 seats for BDS course, totalling 1629 seats were made available by the States under the 15% all-India quota. On the basis of the results declared by Respondent 2, 2759 successful candidates were sent call letters. By the end of the first round of counselling, 86 seats remained unfilled to be allotted in the second round. Some States or colleges informed their vacancy positions under 15% all-India quota from the first round of allotment amounting to 245 seats. However, some States have not intimated vacancy positions even as late as 5-9-2001. **4.** It is submitted that the candidates from these States who have been allotted seats in the first round of allotment may not have been given the course or college or place of their choice and in case later on they get the allotment of their choice under the State quota, then they will vacate the seats allotted to them under the all-India quota. Hence they apprehend that more than 700 seats will fall vacant once the counselling is conducted in the aforesaid States. Therefore, it is submitted that a third round of counselling is required to be held and that the vacant seats, if any, should arise in the 15 per cent allIndia quota seats should not be allowed to revert back to the States/colleges after September 2001 and that instead successful and meritorious candidates in the all-India quota should be allotted these seats or such other orders as necessary may be passed. **5.** As per clause 14 of the Scheme, if the Dean or the Principal of the college concerned does not notify the vacancy position due to non-joining of candidate or candidates in the first round of counselling before the date indicated therein, the seats allotted to the college will be treated as vacant and allotment of candidates will be made against these deemed vacant seats and it shall be the responsibility of the Dean or the Principal of the college concerned to give admission to those candidates. The second round of allotment by personal appearance will be for candidates who were allotted a seat in the first round and who wish to change their allotted college/course and wish to join the same against vacancies arising due to nonjoining of the candidates allotted in the first round of personal W.A. No. 1692/2020 : 10 : appearance and for candidates on the merit list who could not be considered for allotment in the first round. It is thus the second round of counselling by personal appearance was to be concluded by a particular date. **6.** When a detailed scheme has been framed through orders of this Court and the manner in which it has to be worked out is also indicated therein, we do not think that if in a particular year there is any shortfall or a certain number of seats are not filled up, the same should be done by adopting one more round of counselling because there is no scope for the third round of counselling under the Scheme. It would not be advisable to go on altering the Scheme as and when seats are found vacant. What is to be borne in mind is that broad equality will have to be achieved and not that it should result in any mathematical exactitude. Out of about 1600 seats, if 250 seats are not filled up for various reasons, we do not think it should result in the third round of counselling. If that process is to be adopted then there will be again vacancies and further filling up of the seats falling vacant will have to be undertaken. In that process, it will become endless until all the seats under the all-India quota are filled up. That is not the object of the Scheme formulated by this Court. The object was to achieve a broad-based equality as indicated by us at the outset and we do not think that any steps have to be taken for altering the Scheme. Moreover, this Court in _Medical Council of India_ v. _Madhu Singh_ [(2002) 7 SCC 258] has taken the view that there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education. Even if seats are unfilled, that cannot be a ground for making mid-session admissions and there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. If these aspects are borne in mind, we do not think any reliefs as sought for by the petitioners can be granted under these petitions.” 14. Therefore, on a reading of the judgment of the Apex Court, it is clear that the directions constitute a scheme by itself and W.A. No. 1692/2020 : 11 : therefore, unless and until that scheme is modified by the Apex Court itself, no relief could have been granted by the writ court. Even though the learned Senior Counsel for the appellants has invited our attention to the judgment of a learned single Judge of the High Court of Karnataka in _**Moogambigai Charitable and Educational Trust and others v. Union of India and others**_ [W.P.(C) No. 7482 of 2020 dated 03.11.2020], we do not think that the reliefs sought for by the appellants can be granted, in view of the judgment in _**Neelu Arora**_ (supra). Therefore, in our considered opinion, the learned single Judge was right in dismissing the writ petition without considering the merit of the case advanced by the appellants. 15. In the light of the above, and the directions of the Hon'ble Supreme Court in _**Assn. of Private Medical and Dental Colleges of**_ _**Chhatisgarh**_ taken note of by the learned single Judge, we are of the view no direction was possible to be made by the learned single judge directing the respondents for a third round of counselling for admission under the All India Quota. 16. Whatever that be, learned Special Government Pleader submitted that 45 seats earmarked under the All India quota have been reverted to the State quota and that counselling has been completed, and the orders of provisional appointment have been W.A. No. 1692/2020 : 12 : issued to the selected candidates and that tomorrow is the last date for joining. The discussion of facts made above would make it clear that even though various aspects are put forth by the appellants before the learned single Judge, the learned single Judge did not consider the matter on merits, since the issue raised with respect to the third round of counselling or mop-up counselling is guided by the judgment of the Apex Court in _**Neelu Arora**_ **(** supra). Needless to say, there is no jurisdictional error or other legal infirmities in the judgment of the learned single Judge requiring any interference in an intra court appeal filed under section 5 of the High Court Act. Writ appeal fails and accordingly, it is dismissed. **S. MANIKUMAR, CHIEF JUSTICE.** **SHAJI P. CHALY,** **JUDGE.** rv W.A. No. 1692/2020 : 13 : ## **APPENDIX** ## APPELLANT'S EXHIBITS: ANNEXURE A COPY OF THE NOTICE NO.U11011/04/2020-MEC DATED 9.12.2020 ISSUED BY THE DIRECTOR GENERAL OF HEALTH SERVICES. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ PS TO JUDGE. RV