Tesla Thomas v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE ACTING CHIEF JUSTICE MR. MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR.JUSTICE K.T.SANKARAN THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938 WA.No.1039 of 2016 IN WP(C).9782/2014 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 9782/2014 OF HIGH COURT OF KERALA DATED 09-04-2015 ## APPELLANT/PETITIONER : --------------------------------- TESLA THOMAS S/O MR.THOMAS SEBASTAIN, AGED 39 YEARS, THEKKENKATTIL HOUSE, POLLATHAI P.O. KALAVOOR VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT, KERALA-688522. BY ADV. TESLA THOMAS (PARTY-IN-PERSON) ## RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 2. THE CENTRAL COUNCIL OF HOMOEOPATHY (CCH) REPRESENTED BY ITS SECRETARY, ANUSANDHANBHAVAN, 61-65 INDUSTRIAL AREA, OPPOSITE TO D BLOCK JANAKPURI, NEW DELHI-110058 3. THE PRINCIPAL SANCTIONING AUTHORITY/CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHY MEDICAL COLLEGE, THIRUVANANTHAPURAM-695001 4. THE KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O. THRISSUR-680596 5. SHREE VIDHYADIRAJA HOMOEOPATHY MEDICAL COLLEGE, REPRESENTED BY ITS PRINCIPAL, THIRUVANANTHAPURAM-695050 R4 BY ADV. SRI.P.SREEKUMAR,SC,KERALA UTY. OF HEALTH SCIENCES R1-R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R5 BY ADV. SRI.ABRAHAM SAMSON R BY GOVERNMENT PLEADER SRI.TEKCHAND THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.A.NO.1039/2016 ## APPENDIX ## PETITIONER'S DOCUMENTS: ANNEXURE A1: COPY OF RELEVANT PAGES OF EDUCATIONAL REGULATION OF 4TH RESPONDENT UNIVERSITY (BHMS) ANNEXURE A2: COPY OF THE HOMOEOPATHY CENTRAL COUNCIL ACT, 1973 ANNEXURE A3: COPY OF COMMUNICATION FROM THE FIFTH RESPONDENT COLLEGE TO THE APPELLANT DATED 20.5.2014. ANNEXURE A4: COPY OF COMMUNICATION FROM THE FIFTH RESPONDENT TO THE APPELLANT DATED 20.5.2014. ANNEXURE A5: COPY OF OBC CERTIFICATE ISSUED TO THE APPELLANT BY THE TAHSILDAR OF AMBALAPPUZHA TALUK. ANNEXURE A6: COPY OF DENIED MEMO FROM THE KERALA UNIVERSITY, THIRUVANANTHAPURAM DATED 24TH AUGUST, 2011 ISSUED TO THE APPELLANT. ## ADDITIONAL DOCUMENTS PRODUCED ALONG WITH I.A.NO.870/2016 ANNEXURE A7: COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 9.5.2016 ANNEXURE A8: CERTIFIED COPY OF THE JUDGMENT IN W.P.(C) NO.31364/2015 DATED 31.3.2016 OF THE HIGH COURT OF KERALA. ## ADDITIONAL DOCUMENTS PRODUCED ALONG WITH C.M.APPLN. NO.587/2016: ANNEXURE B1: CERTIFIED COPY OF THE ORDER IN CMP NO.3271/15 DATED 7.11.2015 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA. ANNEXURE B2: CERTIFIED COPY OF THE ORDER IN CMP NO.4029/15 IN C.C.NO.176/15 DATED 22.2.2016 OF THE CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA. ANNEXURE B3: COPY OF THE NOTICE GIVEN TO THE S.I. OF POLICE, NORTH POLICE STATION, ALAPPUZHA BY THE APPELLANT, BEFORE REGISTERING THE FIR. ANNEXURE B4: COPY OF THE NEWS PAPER REPORT DATED 6.3.2016. ## RESPONDENTS' DOCUMENTS: NIL //TRUE COPY// P.A. TO JUDGE # **MOHAN M. SHANTANAGOUDAR, AG. C.J. &** ## **K.T.SANKARAN, J.** ----------------------------------------- W.A.No.1039 of 2016 ----------------------------------------- Dated this the 18[th] day of August, 2016 ## _**JUDGMENT**_ ## _**K.T.Sankaran, J.**_ The appellant challenges the judgment of the learned Single Judge in W.P.(C) No.9782 of 2014, by which the learned Single Judge dismissed the Writ Petition. The relief prayed for by the appellant/petitioner in the Writ Petition is to quash Exhibits P1 and P7 and to issue a writ of mandamus or any other order commanding respondent No.4 in the Writ Petition (Kerala University of Health Sciences) to permit him to continue his studies as per his original admission at Shree Vidyadhiraja Homoeopathic Medical College (fifth respondent in the Writ Petition) and to permit him to appear for the examination. Exhibit P1 is a communication dated 6.9.2011 W.A.No.1039/2016 2 issued by the Kerala University of Health Sciences to the appellant informing him that since he has passed only one subject compartmentally from the National Institute of Open Schooling, the University cannot issue eligibility certificate for joining BHMS course. 2. According to the appellant, he completed his Pre-Degree course from the Kerala University in the year 1997 as English, Hindi, Physics, Chemistry and Mathematics as elective subjects. It is also stated that the he passed the subject Biology from the National Institute of Open Schooling, Noida in 2010. According to the appellant, he joined BHMS course at Shree Vidyadhiraja Homoeopathic Medical College. Admittedly, he did not appear for any entrance examination conducted by the Commissioner for Entrance Examination, which is mandatory for admission to BHMS course even in an aided institution. W.A.No.1039/2016 3 3. Learned Single Judge noticed that the appellant/petitioner passed the subject Biology from a different University after 13 years of the completion of Pre-Degree course from the Kerala University. It is submitted by the learned Standing Counsel appearing for the University that the Kerala University of Health Sciences has not recognised any certificate from open schooling. The contention of the appellant based on the communication issued by the Central Council of Homoeopathy in support of the contention of the appellant that his qualification Biology acquired from the National Institute of Open Schooling coupled with his Pre-Degree qualification without Biology would entitle him to seek admission for BHMS course in the University, was rightly rejected by the learned Single Judge. 4. The University through out maintained that the appellant was never validly admitted as a student for BHMS W.A.No.1039/2016 4 course. The fifth respondent in the Writ Petition, in a futile attempt to support the appellant/petitioner, submitted that the application for registration of the appellant/petitioner was despatched by the local despatch, contrary to the mandatory requirement of uploading the application as prescribed by the University. Admittedly, the name of the appellant was not registered by the procedure prescribed by the University. The contention that the application for registration was sent by local despatch was not accepted by the learned Single Judge, since there was no legal sanction for such an exercise. There was no evidence before the Court to show that the contention of the appellant, which was apparently supported by the fifth respondent, was genuine. In the statement filed by the University in the Writ Petition, it was specifically contended thus : “4. Regarding the claim of the petitioner that W.A.No.1039/2016 5 he was admitted to the BHMS course for the year 2011 by the fifth respondent under the management quota it is submitted that the fifth respondent did not forward his name for registration to the course and the college did not even up load the details of the petitioner to the web portal on the relevant date. In Exhibit P7 this respondent has informed the petitioner that only the names of 39 students were registered online by the fifth respondent college and his name was not furnished to the University. The petitioner himself requested his registration to the course and the same could not be accepted. As this respondent could consider the registration of students, whose names were forwarded by the concerned college within the prescribed time alone, the claim of the petitioner for registration to the course fails and no other contentions raised in the writ Petition is to be considered for the resolution of the present dispute.” 5. In the statement filed by the fourth respondent, it is also stated that on getting the request for registration of the W.A.No.1039/2016 6 course from the appellant, the University sought an explanation from the Principal of the fifth respondent college. The Principal explained that he was misguided by the appellant, that admission was given to the appellant provisionally and subject to the approval from the University. The University has never recognised the appellant as a registered applicant. The appellant did not appear for the entrance examination. His name does not appear in the list of candidates who appeared for the entrance examination conducted by the Commissioner in the list of candidates prepared by the Commissioner for Entrance Examination. The basic requirements to get an admission for BHMS course were not satisfied by the appellant. 6. The appellant submitted that unfilled seats were there in the college and there was nothing wrong in admitting him in such circumstances. The Supreme Court in **Visveswaraya Technological University and another v.** W.A.No.1039/2016 7 ## **Krishnednu Halder and others (AIR 2011 Supreme Court 1429 = 2011 KHC 4210)** rejected a similar contention and held as follows : “10. The respondents (colleges and the students) submitted that in that particular year (2007-2008) nearly 5000 engineering seats remained unfilled. They contended that whenever a large number of seats remained unfilled, on account of non-availability of adequate candidates, para 41(v) and (vi) of Adhiyaman would come into pay and automatically the lower minimum standards prescribed by AICTE alone would apply. This contention is liable to be rejected in view of the principles laid down in the Constitution Bench decision in Dr.Preeti Srivastava and the decision of the larger Bench in S.V.Bratheep which explains the observations in Adhiyaman in the correct perspective. We summarise below the position, emerging from these decisions: (i) While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by the Central Body/AICTE. The term 'adversely affect the W.A.No.1039/2016 8 standards' refers to lowering of the norms laid down by Central Body/AICTE. Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the Central Body/AICTE. - (ii) The observation in para 41(vi) of Adhiyaman to the effect that where seats remain unfilled, the State authorities cannot deny admission to any student satisfying the minimum standards laid down by AICTE, even though he is not qualified according to its standards, is not good law. - (iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/University would cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them, they will continue to apply in spite of the fact that there are vacancies or unfilled seats in any year. W.A.No.1039/2016 9 The main object of prescribing eligibility criteria is not to ensure that all seats are in colleges are filled, but to ensure that excellence in standards of higher education is maintained. ............................................................................ 13. No student or college, in the teeth of the existing and prevalent rules of the State and the University can say that such rules should be ignored, whenever there are unfilled vacancies in colleges. In fact the State/University, may, in spite of vacancies, continue with the higher eligibility criteria to maintain better standards of higher education in the State or in the colleges affiliated to the University.” 7. The appellant, who appeared in person, submitted that he spent 1½ years in the college for studying BHMS course and there was no justification on the part of the University to deny admission to him. When the admission of the appellant itself is not recognised by the University, the claim that the appellant continued in the fifth respondent college appears to be preposterous. It was for the fifth respondent to explain how W.A.No.1039/2016 10 the appellant was allowed to continue in the college for 1½ years without valid admission recognised by the University. Learned counsel appearing for the fifth respondent submitted that the educational agency having not been impleaded in the Writ Petition, the Principal is not competent to explain the same. Such a contention was not taken in the Writ Petition before the learned Single Judge. As a matter of fact, the college was impleaded as the fifth respondent represented by its Principal. At this belated stage, we do not appreciate the contention put forward by the appellant that he is not competent to represent the college and only the educational agency can represent the college. At the same time, learned counsel appearing for the fifth respondent reiterated that the Principal was misled by the appellant and that was why he was given provisional admission in the college. He also submitted, on the instructions of the management, that the appellant was allowed W.A.No.1039/2016 11 to continue in the college. Learned counsel submitted that if at all something illegal has happened it was only with the knowledge of the educational agency and the Principal cannot be blamed for the same. 8. Learned Single Judge considered all the relevant aspects of the matter and held that the appellant is not entitled to any relief. It is also relevant to note that the appellant approached the Court belatedly and there was no explanation for the delay on his part to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The Writ Appeal lacks merit and it is accordingly dismissed. **Mohan M. Shantanagoudar** ## **Acting Chief Justice** **K.T.Sankaran** ## **Judge** csl