Shefini Joseph v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 19TH DAY OF JUNE 2013/29TH JYAISHTA 1935** **WP(C).No. 15393 of 2013 (Y)** **----------------------------** **PETITIONERS:** **-----------** **SHEFINI JOSEPH 1ST YEAR POST BASIC B.SC. NURSING GOVERNMENT COLLEGE OF NURSING, THIRUVANANTHAPURAM RESIDING AT MATHIRAMPUZHA HOUSE, AMALAGIRI PO KOTTAYAM DIST.** **BY ADV. SRI.KALEESWARAM RAJ** **RESPONDENTS:** **------------** **1. STATE OF KERALA** **REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH & FAMILY WELFARE SECRETARIAT THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF MEDICAL EDUCATION THIRUVANANTHAPURAM-695 001.** **3. KERALA UNIVERSITY OF HEALTH & ALLIED SCIENCE REPRESENTED HBY THE REGISTRAR KERALA UNIVERSITY OF HEALTH & ALLIED SCIENCE THRISSUR.** **R1, R2 BY SENIOR GOVERNMENT PLEADER SRI.JOSEPH GEORGE R3 BY SRI.P.SREEKUMAR,SC,KERALA UNIVERSITY OF HEALTH & ALLIED SCIENCE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** **WP(C).No. 15393 of 2013 (Y)** **----------------------------** ## **APPENDIX** **--------** **PETITIONER(S)' EXHIBITS -----------------------** **EXT.P1 - TRUE COPY OF THE COURSE CERTIFICATE DATED 7-6-2013 ISSUED BY THE GOVERNMENT COLLEGE OF NURSING, THIRUVANANTHAPURAM.** **EXT.P2 - TRUE COPY OF THE ALLOTMENT LIST.** **EXT.P3 - TRUE COPY OF THE GO(MS0NO.315/2012/H & FWD DATED 27-9-2012** **EXT.P4 - TRUE COPY OF THE JUDGMENT IN SREEJA S VS. STATE OF KERALA 2013(1) KLT 345** **EXT.P5 - TRUE COPY OF THE JUDGMENT DATED 29-5-2013 IN W.A.NO.283/2013 RESPONDENT(S)' EXHIBITS : NIL** **------------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No. 15393 OF 2013** ......................................................................... **Dated this the 19[th] June, 2013** ## **J U D G M E N T** Non-registration of the petitioner as a student of the First Year Post Basic Nursing Course by the respondent University, despite the admission given by the respondents 1 and 2 against the available seats, based on Ext. P2 allotment list ( she joined the course on 15.01.2013), is the subject matter of challenge in this writ petition. 2. The sequence of events as narrated in the writ petition shows that the petitioner was an aspirant to join the aforesaid course and on coming out successful in the concerned test, Ext.P2 allotment list was prepared . As a matter of fact, '6' seats were reserved for the in-service candidates, out of which '3' seats are in respect of DHS (Department of Health Services) candidates, while the remaining three seats are allotted to Medical Education Department. The petitioner is a person who belongs to the Medical Education Department and stands placed at Sl.No.4 in Ext.P2 allotment list. 3. A dispute arose, when the Government sought to issue Ext.P3, whereby 'seniority was also mentioned as a relevant criteriona to be looked into for granting admission, after **2** ## **W.P.(C)No. 15393 OF 2013** publication of the prospectus, conducting written test and declaration of rank list. Met with the situation, four persons had approached this Court by fling W.P.(C)No. 22726 of 2012 challenging the said Government Order. After hearing, this Court, as per the judgment reported in 2013 (1) KLT 345 _**( Sreeja vs. State of Kerala**_ ), placing reliance on the decisions of the Apex Court, held that the _Rules of the Game could not be altered after commencement of the Game._ It was declared that Ext.P3 was not liable to be acted upon, to the extent as specified. Accordingly, Ext.P3 Government Order was set aside and the petitioners were found as entitled to succeed. Necessary directions were also given to fill up the four vacancies, which were already ordered to be reserved, as per the interim order dated 28.09.2012 passed by this Court. Pursuant to the above verdict, further steps were taken by the concerned respondents . 4. Notice on admission was issued to the parties in the concerned writ petition. But by that time, the first petitioner by name Sreeja had already left India and was working elsewhere and hence she did not choose to join. In the said circumstance, **3** ## **W.P.(C)No. 15393 OF 2013** the resultant vacancy was offered to the petitioner herein being the next person in the queue, as per Ext.P2 allotment list. Accordingly, the petitioner joined the College on '15.01.2013' and is pursuing her studies. Inspite of this, the respondent University did not take any steps to register the petitioner, raising some objections, which made the petitioner to approach this Court by filing this writ petition. 5. The learned Counsel for the petitioner submits that the objection is on the basis of the observation made by the Division Bench of this Court in Ext.P5 judgment that the benefit given in the said decision will not be extended to any other candidate. This according to the petitioner, cannot be made applicable to the case in hand, in view of the factual scenario. It is stated that out of the total 6 seats, only four seats were directed to be kept vacant, while the remaining two seats had already been filled up by persons, reckoning the seniority as well. Pointing out that the persons with lesser seniority had been accommodated, a candidate in the DHS list had approached the Division Bench, seeking leave of the Court to challenge the selection process. **4** ## **W.P.(C)No. 15393 OF 2013** After hearing both the sides, Ext.P5 judgment came to be passed, holding that the appellant therein was entitled to succeed, as she was placed at Sl.No.1 in the 'DHS' Quota. However, observing that the course had advanced by four months and that the examinations in respect of the concerned semester had already been notified, it was directed that, one seat in the next academic year , i.e. 2013-14 would stand reserved for the appellant therein, simultaneously making it clear that the said concession will not apply to any other candidate, as nobody else had approached this Court. 6. The learned Counsel for the petitioner submits that the petitioner had no occasion or necessity to have had approached this Court, for the reason that immediately after passing the judgment, since one of the four candidates did not join, the next candidate, ie. the petitioner was given admission and accordingly, she was permitted to join the college to pursue the study. This being the position, the said stipulation in Ext. P5 does not come in the way of the petitioner. 7. The learned Standing Counsel for the University submits **5** ## **W.P.(C)No. 15393 OF 2013** that the objection is not with reference to the observation in Ext. P5 judgment of the Division Bench, but in view of the observation in paragraphs 25 and 26 of the learned Single Judge, which are extracted below for convenience of reference. _“25. The counter affidavit of the second respondent will show that the last date of admission was extended till 31.10.2012. This Court had passed an interim order dated 28.09.2012 to keep four seats in Post Basic B.Sc. Nursing Degree Course 2012-2013 in the service quota vacant, which has been continuing. Therefore, even though the last date is over, in the light of the interim order which is in force, the admissions can be proceeded with._ _26. Accordingly, the petitioners are entitled to succeed. The writ petition is allowed It is declared that Ext.P3 to the extent it has provided the new criteria for admission to the Post Basic B.Sc. Nursing Course 2012-2013 cannot be applied for such admission. There will be a direction to the respondents to consider the claim of the petitioners for admission for the four seats kept vacant and depending upon their ranking and grant admission to the eligible candidates among the petitioners. The said process will be finalised within two weeks from the date of production of a certified copy of this judgment._ **6** ## **W.P.(C)No. 15393 OF 2013** _No costs. ”_ 8. Heard the learned Government Pleader as well. 9. The fact remains that the learned Single Judge has passed a _declaratory verdict,_ whereby it has been held that Ext.P3 Government Order is not in accordance with law and cannot have any existence and that the same cannot be made applicable for the admissions for the Post Basic B.Sc. Nursing Course 2012-13. The said decision has been upheld by the Division Bench. But since the admission given to the other candidates based on Ex.P3 Government Order was not under challenge, since they were not parties to the proceedings, such admissions were not ordered to be intercepted. By virtue of the declaration of law, no fault can be found in the admission given to the petitioner, enabling her to join the course with effect from 15.01.2013, more so when the first petitioner in W.P.(C)No. 22726 of 2012 did not choose to join. It is true that, the last date of admission was extended only upto 31.10.2012. But in view of the interim order passed by this Court in the concerned writ petition, 'four' seats were ordered to be reserved and **7** ## **W.P.(C)No. 15393 OF 2013** notwithstanding the closure of the admission, a positive direction was given by this Court to accommodate the eligible candidates in respect of four vacancies already reserved. In other words, the purpose of the verdict/order has to be given effect to, notwithstanding the last date stipulated for admission. **10.** This being the position, the petitioner, being the next eligible candidate, has been rightly offered the available seat by the State Government, since one of the four petitioners in W.P. (C)No. 22726 of 2012 did not join. Hence, the observations in paragraphs 25 and 26 of the judgment rendered by the Division Bench (cited supra) cannot be read and understood, so as to arrive at a finding, that if the candidates were not available to be accommodated in the vacant seats, such seats, which were ordered to be reserved by this Court, should have been kept vacant throughout for no benefit/use of anybody, either to the State, the students or to the University. 11. This Court is of the view that a meaningful interpretation has to be given to the said verdict. As such, the petitioner, who is the next candidate in the allotment list and has **8** ## **W.P.(C)No. 15393 OF 2013** been given admission with effect from 15.01.2013 has been rightly accommodated. In the said circumstance, there will be a direction to the University to register the name of the petitioner and permit her to appear for the first year examination. The writ petition is allowed. No cost. ## **P.R.RAMACHANDRA MENON JUDGE** lk