SRUTHI VENUGOPAL v. STATE OF KERALA & ORS.

# **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 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943** **WA.No.436 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 29028/2020(C) OF HIGH COURT OF KERALA DATED 27.1.2021** ## **APPELLANT/PETITIONER IN W.P.:** **SRUTHI VENUGOPAL, AGED 19 YEARS D/O.DR.VENUGOPAL, SUSMRITHI, UDAYA NAGAR, 9TH CROSS, AYYANTHOLE, THRISSUR-680 003.** **BY ADVS. SRI.P.NANDAKUMAR SMT.AMRUTHA SANJEEV SHRI.VIVEK VIJAYAKUMAR** ## **RESPONDENTS/RESPONDENTS IN W.P.:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, G OVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **2 COMMISSIONER FOR ENTRANCE EXAMINATIONS KERALA, FIFTH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM – 695001.** **3 JUBILEE MISSION MEDICAL COLLEGE AND RESEARCH INSTITUTE, MAHATMA NAGAR, NALLIKUNNU, THRISSUR 680 005, REPRESENTED BY ITS PRINCIPAL SRI.ARAVIND KUMAR BABU, SR GP FOR R1 AND R2** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.436 OF 2021 :: 2 :: ## **JUDGMENT** ## **Dated this the 23[rd] day of March 2021** ## **S.MANIKUMAR, C.J.** Appellant in this writ appeal is the petitioner in W.P.(C)No.29028 of 2020. Being aggrieved by the judgment of the writ court in W.P. (C)No.29028 of 2020 dated 27.1.2021, instant appeal is filed. 2. Short facts leading to the filing of this writ appeal are as follows: According to the appellant, she was allotted for MBBS in Sree Gokulam Medical College, Venjarammodu during the 1[st] allotment under State Merit. During the 2[nd] allotment, her allotment was changed to All India Merit in the very same college. The 2[nd] respondent/the Commissioner for Entrance Examinations, thereafter, called for fresh options for mop up allotment and the petitioner submitted her option, even under NRI quota. But, when the mop up allotment list was published, the appellant was not given allotment to any of her choice. Instead, candidates who are having lesser ranks are given their choice allotments in general merit as well as in NRI quota. Writ Petition was filed challenging Exhibit P6 mop up allotment list as it denied the petitioner allotment for MBBS to Jubilee WA.No.436 OF 2021 :: 3 :: Medical Mission College, Thrissur either in general or NRI quota and further, for a declaration that the petitioner having higher rank is entitled to be allotted in mop up allotment at Jubilee Medical Mission College, Thrissur than the candidates now allotted in Exhibit P6 to the said college. A further direction was also sought against the respondents to allot the petitioner to her choice Jubilee Medical Mission College, Thrissur for MBBS by revising Exhibit P6. Learned Single Judge dismissed the Writ Petition stating that candidates who are ranked lower to her are not made parties in the Writ Petition and further ordered that even assuming that the appellant was eligible for participation in the Mop Up Counselling and for transfer from one Self Financing College to another, since all the seats for MBBS Course in the Jubilee Medical Mission Hospital have already been filled up no relief can be granted to her. Hence, this Writ Appeal. ## 3. Operative portion of the impugned judgment reads thus: “8. As pointed by the learned Senior Government Pleader, this Court has in the judgment dated 7.8.2019 in W.P(C).No.21547/2019 repelled the challenge to the guidelines issued for mop up counselling and upheld the admissions given to the candidates with lower rank in similar circumstances. In that case, Commissioner for WA.No.436 OF 2021 :: 4 :: Entrance Examinations had called for options for mop up counselling for admisions to MBBS seats in NRI quota. There was a condition that candidates who stand admitted under All India quota shall not be allowed to participate in the mop up counselling. In other words, the candidates, who were admitted to MBBS course under all other categories would be permitted to take part in the mop up counselling. The notification had provided that transfer would not be permitted to students from one Govt. Medical College to another Govt. Medical College and from one self financing Medical College to another self financing medical college. It further provided that transfer would be permitted in the mop up counselling to students admitted in Self Financing Medical Colleges to Government Medical colleges and vice versa. Transfer to NRI seats would be permitted to Government/Minority seat between 2 self financing colleges or in the same college, even if it is in the same course. The petitioners therein had secured higher rank. Therefore, they claimed that they should be given the opportunity to opt for admission in a college of their higher option. Relying on the judgment in W.P(c).No.35202/2018 this Court held that the spot admissions conducted in respect of seats which fall vacant by unforseen circumstances and filled up by a candidate with lower rank cannot be interfered with. Relying on the judgment in Arvind Kumar Kankane v. State of U.P & Ors. [2001 KHC 1650] it was held that the filling up of a seat by a candidate with lower rank in similar circumstances can only be treated as one in a fortuitous circumstance and there would not be any unreasonableness. At the WA.No.436 OF 2021 ## :: 5 :: same time all of them are governed by the provisions under the Undergraduate Medical Admission Rules which provide for the consequences after each phase of conselling/allotments as well as admissions as directed in interim order passed in Rachit Sinha & Ors. v. Unon of India (UOI) & Ors. It cannot be said that the Graduate Medical Admission Rules issued by the erstwhile Medical Council of India is not applicable to the petitioner. 9. Moreover even though the petitioner claimed that she is entitled to be given admission in a self financing college of her higher option in preference to the candidates who are ranked lower to her, none of them are made parties to this Writ Petition. The learned Senior Government Pleader on instructions submitted that all the seats for MBBS course in the Jubilee Medical Mission Hospital have already been filled up. Therefore, even assuming tha the petitioner was eligible for participation in the mop up counselling and for transfer from one self financing college to another from all India seat to NRI seat, irrespective of the provisions contained in the prospectus and also the guidelines issued for mopup allotment, no relief can be granted to her. Accordingly, the Writ Petition is dismissed.” 4. Learned counsel for the appellant submitted that no rationale is adopted by the 2[nd] respondent/Commissioner for Entrance Examinations, in giving up allotments to candidates having lesser merit and denying better choices to the candidates having higher rank like the appellant. WA.No.436 OF 2021 :: 6 :: The appellant is having NEET rank 22662 and State rank 2863. SI.No.29 in Exhibit P6 allotment list with Rank No.2913 has been allotted Jubilee Medical Mission College, Thrissur in mop up, which was one the higher choices of the appellant. The said candidate was allotted to Karuna Medical College, Palakkad, another Self Financing College in the 2[nd] allotment. Sl.No.315 in Exhibit P6, who is ranked 12657, who was allotted to Mount Zion Medical College, Adoor a Self Financing College during 2[nd] allotment, is also allotted in mop up to Jubilee Medical Mission College, Thrissur in NRI quota. He further submitted that due to the reason that the appellant had a higher rank, she was allotted to a distant Self Financing Medical College in the 1[st] allotment. Further, she has to pay a higher fees at Sree Gokulam Medical College, whereas the fees at Jubilee Medical Mission College is comparatively half the amount. Therefore, by virtue of having a higher rank, the appellant is not only denied one of her higher choice institution but has to pay higher fees too. Therefore, the entire process of admission done by the 2[nd] respondent is highly illegal and arbitrary. WA.No.436 OF 2021 :: 7 :: 5. The contention of the 2[nd] respondent is that as per Appendix F of the Regulations, any student who joined a college in pursuance of 2[nd] round of All India Quota Counselling will not be eligible for further counselling, including the 2[nd] round of State Quota counselling. But according to the appellant, the said provision is also not applicable in the case of the appellant since she has not opted for any further counselling after the 2[nd] round of State Quota counselling. The appellant was allotted to Sree Gokulam Medical College, Venjaramoodu which is the last choice in the 1[st] round of State Quota counselling. In the 2[nd] allotment conducted on 10.12.2020, the appellant was not given allotment in any of her opted colleges but her admission was changed to All India Merit, to suit the convenience of the 2[nd] respondent. Therefore, the contention of the 2[nd] respondent that any student who joined a college in the 2[nd] round of State Quota Counselling will be ineligible for further counselling will not be applicable in the case of the appellant. Consequently, the stand taken by the 2[nd] respondent that candidates who have already joined and taken admission in round 2 of All India Quota will not be eligible to participate in the Mop Up Round for Deemed/Central Universities etc. are made WA.No.436 OF 2021 :: 8 :: without any application of mind as none of these aspects pertains to the contention of the appellant. 6. Further contention raised by learned counsel for the appellant is that though in Exhibit P3 guidelines for online Mop Up Counselling, it is stated that transfer will not be permitted to students admitted in a Self Financing Medical College to another Self Financing Medical College, transfer from NRI seat to Government Minority seat shall be permitted between two Self Financing Medical Colleges or in the same college. At the same time, there is no restriction in the guidelines for a transfer for students admitted in a Self Financing Medical College under State/All India Merit to an NRI seat. For facilitating this, under the Note to the said Regulations, it is also clarified that candidates who wish to claim NRI quota seats to MBBS course in Self Financing Medical Colleges are given provision to upload NRI documents afresh and such candidates can register NRI options through Mop Up counselling. Accordingly, the appellant had also submitted fresh options including for a NRI seat which was vacant at Jubilee Mission Medical College. But even then, she was denied of the same and the said seat was allotted to a student having State WA.No.436 OF 2021 :: 9 :: Rank 12657. This will be clear from Exhibit P6 Mop Up allotment list in which the said student is included as Sl.No.315. 7. Learned counsel for the appellant further contended that though the 2[nd] respondent states that there cannot be any transfer for students admitted in a Self Financing Medical College to another Self Financing Medical College, the appellant has proved that Sl.No.29 and 315 have already been allotted admission in Self Financing Medical Colleges as per 2[nd] round allotment, but even then they were granted transfer to other Self Financing Medical Colleges, which is discernible from Exhibit P7, 2[nd] allotment list dated 10.12.2020. 8. Learned counsel for the appellant also relied on the decision of the Supreme Court reported in _**2012 (7) SCC 389 (Asha v. Pandit B.D. Sharma Health University)**_ wherein it has been held that even if the last date for admissions are over, the court can issue necessary directions in cases where ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extra ordinary jurisdiction of admitting candidates to the courses after the deadline. The above decision was further affirmed by a larger bench in WA.No.436 OF 2021 :: 10 :: _**AIR 2020 SC 47**_ . _**Krishna Sradha v. State of Andhra Pradesh**_ reported in Relying on the abovesaid decisions, learned counsel for the appellant contended that the action taken by the second respondent to overlook the merit of the appellant is absolutely illegal. 9. Heard learned counsel for the parties and perused the materials available on record. 10. It is evident from the records and the submissions made on behalf of the learned Senior Government Pleader that the second respondent/Commissioner for Entrance Examinations is authorised to issue necessary orders regarding Mop Up Counselling in due course. It is as per the same that Exhibit P3 notification has been issued, which also contains the guidelines for Mop Up Counselling. According to the respondents, the conditions of the prospectus and the regulations concerned do not entitle the appellant/writ petitioner for admission to the third respondent college/Jubilee Mssion Medical College and Research Institute. 11. Be that as it may, at this stage, Mop Up Counselling is over and the students have got admitted to the allotted colleges. It is also truly WA.No.436 OF 2021 :: 11 :: stated that the challenge mounted against Ext.P6 allotment list will not be sustainable without the affected parties in the party array. Reallotment of the appellant at this stage, would have the consequence of chain of events of disturbing admissions so far made to many students, in various Medical Colleges. We do not find any error in the impugned judgment. In view of the above, we are not inclined to interfere with the same. Appeal fails and it is dismissed. **sd/S.MANIKUMAR CHIEF JUSTICE** **sd/SHAJI P. CHALY JUDGE** jes