Self Financing Institution; Subaida Jahafar Vs. Commissioner of Entrance Examinations [Kerala High Court, 10-11-2016]

Self Financing Institutions – Seat vacated by the candidate in the process of giving Spot Allotment in the Government Medical/Dental College, would not be left unfilled and to have the same filled up without compromising the ‘Merit’ – Directions Issued.

# Self Financing Institutions

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & P. SOMARAJAN, JJ.

W.P.(C) Nos. 31997, 32209, 32249, 32288, 32294, 32361 and 32365 of 2016

Dated, this the 10th day of November, 2016

PETITIONER(S)/PETITIONER

SUBAIDA JAHAFAR, KOZHIKODE

BY ADV. SRI.T.G.RAJENDRAN

RESPONDENT(S)/RESPONDENTS

1. THE COMMISSIONER OF ENTRANCE EXAMINATIONS OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING,SANTHI NAGAR, THIRUVANANTHAPURAM-695001.

2. KERALA UNIVERSITY OF HEALTH SCIENCE, REPRESENTED BY ITS REGISTRAR,MEDICAL COLLEGE.P.O, TRICHUR-680559.

3. THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.

4. THE PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH,SECRETARIAT,THIRUVANANTHAPURAM-695001.

5. MES DENTAL COLLEGE, PERINTHALMANNA,MALAPPURAM-676505.

6. ADMISSION SUPERVISORY COMMITTEE, T.C. 15/1553-4, PRASANTH BUILDINGS, M.P. APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM.

R1,R3,R4 BY SENIOR GOVERNMENT PLEADER SRI. T. RAJASEKHARAN NAIR R2 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE R5 BY ADV. SRI.BABU KARUKAPADATH R5 BY ADV. SMT.M.A.VAHEEDA BABU R5 BY ADV. SRI.K.M.FAIZAL R5 BY ADV. SRI.P.U.VINOD KUMAR R5 BY ADV. SRI.MITHUN BABY JOHN R5 BY ADV. SRI.J.RAMKUMAR R5 BY ADV. SMT.AMRIN FATHIMA ADDL. R6 BY ADV. SMT.MARY BENJAMIN

JUDGMENT

Ramachandra Menon, J.

The common bone of contentions raised in all these writ petitions is in respect of denial of opportunity to participate in the ‘spot allotment’ scheduled on 30.09.2016 or on the subsequent dates, in exercise of the higher option of the petitioners/candidates, who have already got admission in various Self Financing Institutions in the earlier rounds of allotment, based on their position in the qualifying standards, also with reference to ‘KEAM 2016’ [Kerala Engineering, Agriculture Medical Entrance Examinations 2016]. In some of the cases, the petitioners contend that, ‘Merit’ being of paramount importance to decide the eligibility for admission for professional courses, by virtue of the higher option exercised by them, the fact that they have already been alloted to a Self Financing Institution cannot be a bar, for ignoring their credentials, when it comes to the ‘spot allotment’ for admission for similar course in the Governmental Institutions or for a better course in the Government Medical Colleges. It is also contended, in some cases, that the bar is created only by virtue of the notification issued by the Commissioner for Entrance Examinations on 28.09.2016, which was conspicuously absent in the earlier notification dealing with similar spot allotment issued on 18.09.2016 and further that such a stipulation is quite contrary to the terms of ‘Clause 11.6.9’ of the Prospectus and hence sought to be interfered.

2. The petitioner in W.P.(C) No. 31997 of 2016 participated in the common entrance examination conducted by the Commissioner for Entrance Examinations and based on the options given, was given admission for the ‘BDS’ course in the 5th respondent institution [M.E.S. Dental College, Perinthalmanna, Malappuram], which is a Self Financing Institution. It is stated that, though she had given a higher option for joining the Pariyaram Dental College at Kannur, the same was not considered and she was given admission based on her last priority. In the course of further proceedings, the Commissioner for Entrance Examinations issued a ‘spot allotment’ notification dated 18.09.2016 scheduling such exercise to be held on 22.09.2016. As per Clause (iii) of the said notification, it was stated that no request for change/transfer will be entertained in respect of the same course from a Government college to another Government college or from one Self Financing Institution to another Self Financing Institution. However, as per the very next Clause [Clause (iv)], it was clearly stipulated that, this, however, will not bar the way of the candidate in seeking for admission for a different course or for getting admission in a Government college from a Self Financing Institution, even for the same course. The said facility, as provided in Clause (iv) of the notification dated 18.09.2016, was virtually withdrawn in respect of the subsequent spot allotment exercise notified as per Ext. P5 dated 28.09.2016, which bluntly stated that the candidates, who have already got admission in Self Financing Medical/Dental colleges will not be eligible to take part in the spot selection process by virtue of the relevant Government orders governing the field. The said notification stipulated that no permission will be granted to join for the course from one Government college to another Government college. The notification also stated that the position will be different in respect of ‘Pariyaram Medical/Dental College, Kannur’, where, it could be considered for spot allotment in the Government Medical/Dental Colleges and that resultant vacancies will be filled up then and there. The said notification has virtually done away with the merit of the candidate concerned, resulting in admission in a Government Medical/Dental College being given to a candidate of lesser merit, who was not meritorious enough to have secured admission even in a Self Financing institution, while denying such entry/opportunity to a candidate who has secured admission based on the higher merit in a Self Financing Institution in preference to the candidates who lost the chance. It is in the said circumstance, that the petitioner has approached this Court by filing the writ petition, seeking to set aside Ext. P5 notification dated 28.09.2016, to the extent it prevents the candidates like the petitioner from taking part in the spot admission scheduled therein, who have already got admissions in Self Financing Colleges and seeking to direct the respondents to permit the petitioner also to take part in the spot admission process.

3. In W.P.(C) No. 32209 of 2016, the grievance is similar; which however is sought to be highlighted with reference to the injustice resulted in having given admission to the 4th respondent in the Government Medical College – Trichur, pursuant to the spot allotment held on 30.09.2016 after denying an opportunity to the petitioner to participate in the said spot allotment held on 30.09.2016; in spite of the fact that the petitioner, who is also a ‘Muslim’ candidate like the 4th respondent, was having a higher merit with medical rank of 897 [Muslim rank 267] was placed over and above the 4th respondent who was having only a rank of 898 [Muslim rank 268] as revealed from the rank list. The petitioner in the said case had given higher options with reference to the different Government Medical Colleges in the State and thereafter, showing the M.E.S. Medical College, Perinthalmanna, as the next option; after which the option was in respect of Academy of Medical Sciences, Pariyaram. It is in the process of 5th allotment, that the petitioner was considered and alloted for ‘BDS’ in the 3rd respondent/M.E.S. Medical College [higher option between the two Self Financing colleges]. The allotment was in respect of 50% merit quota allocable by the Commissioner for Entrance Examinations and accordingly, the petitioner joined the ‘BDS’ course in the 3rd respondent Institution. It is also stated that, in the 6th phase of allotment, pursuant to the notification dated 18.09.2016 [Ext.P4], though the petitioner participated in the ‘spot allotment’, the position was not improved to have had a better allotment and the rank position was remaining in tact. But subsequently, when steps were taken to fill up the still remaining vacancies, as per Ext. P6 notification dated 28.09.2016, by virtue of the relevant Clause contained therein holding that those students who have already got admission in Private Self Financing Medical/Dental colleges are not eligible to be participated in the spot allotment [as per various Government Orders], opportunity was denied to the petitioner, whereas the 4th respondent, who was standing on a lower position in the rank list than the petitioner, both in the General position and also in the Muslim category [who had not obtained admission even in any Self Financing institution] came to be fortunate enough to be permitted to participate in the spot allotment and was taken to ‘Cloud Nine’ by giving admission in the Government Medical College, Trichur, where she is now pursuing her studies, paying only a nominal fee of Rs. 23,000/- per year. Despite the better credentials and merit over and above the 4th respondent, the petitioner is virtually made to satisfy an yearly fee of Rs.2,10,000/– to continue the studies in the 3rd respondent Self Financing Institution. This has been resulted only by virtue of the arbitrary clause as notified in Ext. P6 notification dated 28.09.2016, which in fact is stated as contrary to the terms of the Prospectus, particularly, ‘Clause 11.6.9’ and hence the challenge. The petitioner seeks to set aside Ext. P6 and for a declaration that he was entitled to participate in the spot allotment conducted on 30.09.2016 and to admit him in the Government Medical College, Trichur, in the seat in which the 4th respondent was alloted and admitted on 30.09.2016.

4. The petitioner in W.P.(C) No. 32249 of 2016 is a person belonging to the Scheduled Caste and based on the result in the Common Entrance Examination and the eligibility criteria, she was alloted a seat for BDS in the 4th respondent Private Self Financing Institution. It is stated that he has satisfied the requisite fee of Rs.5,00,000/- on 05.09.2016 as borne by Ext. P4 receipt. In the course of further proceedings, it is conceded that the petitioner was permitted to participate in the spot allotment exercise held on 22.09.2016, pursuant to Ext. P7 notification dated 18.09.2016 [actually conducted on 24.09.2016], but she could not get admission since the vacancies available were less and the persons with higher rank were alloted and admitted on that date. Subsequently, Ext. P8 notification was issued on 28.09.2016, scheduling another spot allotment on 30.09.2016. But in view of the adverse clause contained in Ext. P8 notification denying opportunity to such candidates [who have already obtained admission in any Self Financing Institution] from participating in the process, the petitioner came to be aggrieved and hence the writ petition seeking to quash Ext.P8 notification to the requisite extent and also to direct the second respondent to permit the petitioner as well to participate in the next spot allotment scheduled on 06.10.2016.

5. In W.P.(C) No. 32288 of 2016, the petitioner, on coming out successful in the common entrance examination, was alloted a seat for ‘BDS’ in a Self Financing Dental College [not made a party to the writ petition]. The grievance is that, the petitioner was not permitted to participate in the spot allotment held on 30.09.2016 pursuant to Ext. P6 notification dated 28.09.2016. As a result of this, it is stated that the persons having lower ranks in the merit list came to be fortunate to have admission in Government Dental Colleges, with the fortune of satisfying only a nominal fee of Rs.23,000/- per year, whereas the petitioner with higher rank is made to pay a sum of Rs.2,10,000/- per year, which is stated as highly arbitrary and illegal, thus seeking for interference with Ext. P6 notification. The petitioner has also sought to declare that ‘Clause 11.6.9’ of the Prospectus issued by the first respondent is violative of the constitutional rights and to have it struck down to the requisite extent, simultaneously seeking for a direction to conduct a fresh spot allotment to the vacant seats in the Medical/Dental Courses, giving opportunity to participate in the spot allotment based on the ranks, before 07.10.2016.

6. In W.P.(C) No. 32294 of 2016, the challenge is against Ext.P9 notification dated 22.09.2016 involving a similar clause denying opportunity to the petitioner to participate in the spot allotment process held on 30.09.2016. The petitioner, who is an Ezhava candidate, got admission in the 4th respondent private Self Financing Institution and the adverse clause in Ext. P9 notification is sought to be set aside; seeking for permission to participate in the next spot allotment scheduled to be held on 06.10.2016.

7. In W.P.(C) No. 32361 of 2016, the petitioner, who belongs to Latin Catholic Community, participated in the Common Entrance Examination and based on her merit position, she was alloted a seat for ‘BDS’ in a Government merit seat in a Government-controlled Self Financing College – [Indira Gandhi Institute of Dental Science College, who is not impleaded in the party array]. Since the petitioner had retained the allotment of higher option at the time of joining the said college, she was entitled to be considered for spot allotment as well. It is the case of the petitioner that, though an opportunity was sought for to permit the petitioner to participate in the spot admission conducted by the Commissioner for Entrance Examinations on 30.09.2016, the request was not entertained and opportunity was denied, which hence is sought to be intercepted by filing the writ petition. It is also stated that the 4th respondent was having only a lower rank than the petitioner, but the said respondent was given admission in the spot allotment process held on 30.09.2016 and hence the grievance. The prayer is to set aside Ext. P3 notification dated 29.09.2016 with reference to the spot admission scheduled on 30.09.2016, wherein it has been stipulated that the candidates, who have already secured admission in Private Self Financing Medical College/Dental College will not be entitled to participate in the said spot admission. There is also a prayer to direct the 3rd respondent to admit the petitioner in the Government Dental College – Alappuzha, where a seat was alloted to the 4th respondent (a candidate of lesser merit than the petitioner).

8. In W.P.(C) No. 32365 of 2016, the petitioner belongs to Latin Catholic community and she was given admission based on her option for the course of ‘BDS’ in a private Self Financing Institution [Malabar Dental College – who is not made a party to the proceedings]. It is however conceded that in the course of further proceedings, the petitioner was permitted to participate in the spot allotment to get admission in the Government Dental Colleges which took place on 24.09.2016, but, only persons with higher ranks got admission in the said process on that day. In respect of the subsequent spot allotment held on 30.09.2016, she was denied opportunity to participate, by virtue of the terms of Ext. P2 notification dated 29.09.2016 and this made the petitioner to approach this Court challenging the restrictive clause as aforesaid and in turn, seeking for admission in any of the Government Dental Colleges.

9. The reliefs sought for are resisted from the part of the respondent State/Commissioner for Entrance Examinations and a detailed statement has been caused to be filed on behalf of them by the learned Sr. Government Pleader, referring to the actual facts and figures. The reliefs sought for are opposed, also by the Admission Supervisory Committee, pointing out that there is absolutely no merit in the writ petitions and that the proceedings have been finalised strictly in terms of the relevant clauses in the Prospectus, particularly ‘Clause.11.6.9’ and such other orders/Notifications issued by the Government from time to time, to the extent the relevant orders/proceedings are approved by the Committee in terms of the provisions under Act 9 of 2006.

10. Heard the learned counsel appearing for the petitioners, the learned Sr. Government Pleader appearing for the State/Department, the learned Standing Counsel appearing for the Admission Supervisory Committee and also the learned counsel for some of the party respondents, who have entered appearance.

11. Mr. Roshen D. Alexander, the learned counsel appearing for the petitioner in W.P.(C)32209 of 2016 led the arguments on behalf of the petitioners and he was supported by the other learned counsel. According to the learned counsel, right to get admission in a Government College, based on Merit, cannot be curtailed in any manner, unless there is any prohibition in the Prospectus. The learned counsel submitted that ‘Clause 11.6.9’ of Ext.P7 Prospectus in the said case does not impose any such restriction and it cannot be there as well, as ‘Merit’ shall be of paramount importance, as made clear by the Apex Court on many a time. It was also pointed out that the term “Government Merit seats” as it appears in ‘Clause 11.6.9’ has to be read and understood with reference to the term “Government seats” as it appears under ‘Clause 2.1.1’ of the Prospectus.

12. A candidate with ‘less Merit’ like the 4th respondent therein, who was having the Medical rank ‘898‘ (with the Muslim category rank ‘268‘), can stand only next in the queue after the petitioner, who got the Medical Rank ‘897′ (with the Muslim category Rank ‘267′). It was by virtue of the better merit of the petitioner that he came to be allotted first, based on his option and was accommodated in the third respondent Self Financing Institution. Merely for the reason that he has been admitted in a Self Financing Institution, that by itself cannot stand detrimental to the rights and interests in seeking for and securing admission in a Government College based on his higher option. Since entry to the field of Spot Selection is banned, in so far as the petitioner/more meritorious candidate is concerned and since the 4th respondent, who had obtained no admission anywhere because of lesser merits, was however given a chance to participate in such exercise, it is contended that total injustice has been resulted, which is quite arbitrary and illegal in all respects. ‘Inadequacy of time’ to complete the process without causing any loss to the Self Financing Institution concerned (where admission was given to the petitioner, on vacating the seat to join the Government College pursuant to Spot Selection), shall never be a ground to deny the vested right by virtue of ‘Merit’. There is absolutely no rhyme or reason to give such an interpretation to Clause 11.6.9 of the Prospectus and hence it requires to be intercepted, submitted the learned Counsel.

13. It is brought to the notice of this Court that, after exercising higher option, with reference to the Government Medical College concerned, the petitioner in W.P.(C) 32209 of 2016 had given the priority showing the third respondent Institution in the Self Financing Sector as the next one to be considered; followed by Academy of Medical Science, Pariyaram, Kannur. When entry to participate in the Spot Allotment scheduled to be conducted on 30.09.2016 was denied to the petitioner, the notification dated 28.09.2016 very well permitted the candidates who had got admission in the Academy of Medical Science, Pariyaram, which is cited as an instance of ‘double standards’ amounting to discrimination. Had the petitioner been told then and there that the petitioner would not be considered for Spot Selection, if had opted to a Self Financing Institution like the third respondent; unlike the Academy of Medical Science, Pariyaram, under no circumstance would the petitioner have opted the third respondent College as higher in the order of priority and would have shown the Academy of Medical Science, Pariyaram as the next option, after the higher options in respect of the Government Medical Colleges. It is also brought to the notice of this Court that such movement was permitted from one Self Financing Medical/Dental College to a Government Medical/Dental College as borne by clause (iv) of Ext.P2 notification dated 18.09.2016, though horizontal movement for the same course from one Institution to another Self Financing Institution or for the same course from one Government Medical College to another Medical College was not possible, by virtue of Clause (iii) of the said notification dated 18.09.2016. The said rider, as contained in ‘Clause (iv)’ was quite arbitrarily taken away, when it came to the next ‘Spot Allotment’ exercise notified as per Ext.P5 dated 28.09.2016. Total miscarriage of justice has been resulted because of the course pursued by the respondents and hence sought to be interfered by this Court. Reliance is also sought to be placed on the verdict passed by the Supreme Court reported in

# Asha vs. Pt. B.D.Sharma, University of Health Sciences and others, (2012) 7 SCC 389

holding that Merit, Fairness and Transparency are of paramount importance in the field of admissions to Professional Colleges and that the Merit cannot be compromised under any circumstance. Reference is also made to the observation made by a Division Bench of this Court as per the decision reported in

# Hanna Thasnim K.V. vs. State of Kerala and others, ILR 2014 (2) Ker. 388

(paragraph 35), alerting all concerned as to the lapses/mistakes and never to repeat the same in future, insisting to take more care and caution in the field of ‘Admissions’.

14. The learned counsel for the petitioners submitted that the cut-off date of 30.09.2016 to finalise the admission, as insisted by the Medical Council cannot mark the red line, if the fault is apparently on the part of the authorities and there exists any failure in preserving the merits; which could be relaxed and moulded to an appropriate extent as found to be fit, just and proper by this Court. It is also pointed out that, by virtue of the higher credentials of the petitioner having obtained All India Rank, getting admission in the Kodaku Institute of Medical Sciences, Kodaku, as evident from Ext.P10, he did not choose to pursue studies there expecting an entry/admission in the Medical Colleges of Kerala by virtue of his rank position also based on the picture that was prevailing before the date of Spot Admission. Reference is made to Ext.P11 outcome of the Engineering Entrance Examination conducted on an All India Basis and the proven eligibility of the petitioner to get Admission in the said process as well; which was not opted for the very same reason.

15. The learned Sr. Government Pleader pointed out that the idea and understanding of the petitioners as to the scope of ‘Spot Allotment’ conducted pursuant to the notification dated 18.09.2016 and the Spot Admission conducted pursuant to the notification dated 28.09.2016; besides as to the scope of Clause 11.6.9 of the Prospectus is thoroughly wrong and misconceived. Clause (iv) of Ext.P4 notification dated 18.09.2016 enabled all concerned to participate in the process of Spot Selection, which was in conformity with the terms of the Prospectus and based on the Agreement executed between the Government and the various Self Financing Institutions represented by their Association. As per the said Agreement and as per the terms of the Prospectus, the last date to have made allotment by the Commissioner for Entrance Examinations was on 26.09.2016, after which date, all the left over seats were permitted to be filled up by the Self Financing Institutions themselves, from the rank list based on the merit, treating the same as additional ‘Management Quota seats’. This being the position, if at all any left over seats in the Government Medical/Dental Colleges were to be filled up in the Spot Admission conducted after the said date of 26.09.2016, permitting the candidates who have already got admission in the Self Financing Institutions, it was not possible to have the resultant seats in the Self Financing Institutions to be filled up by advising/allotting any other candidate from the Rank List by the Commissioner for the Entrance Examinations. At the same time, prudent steps had to be taken to see that such seats available in the Government Medical/Dental Colleges were not left unfilled or wasted and it was to meet the need of the hour, that ‘limited entry’ was made possible to consider the case of persons based on their merit, who were not given admission till that date, to the extent as provided/permitted in the relevant Notifications. Academy of Medical Sciences, Pariyaram is an Institution, which is absolutely owned by the Government and it was accordingly, that students who got admission in the said college were permitted to move up in the segment against the vacant seats left over in the Government Medical/Dental Colleges; more so since it was possible for the Commissioner for Entrance Examinations to have filled up the resultant vacancies in the Academy of Medical Sciences, Pariyaram belonging to the Government then and there, which course was not possible in respect of other Self Financing Institutions. There is absolutely no malafides or anything arbitrary or discriminatory in the course and proceedings, according to the learned Government Pleader.

16. The learned Standing Counsel appearing for the Admission Supervisory Committee supported the view expressed by the learned Sr. Government Pleader and pointed out that there is a specific clause as contained in the ‘Clause 2.1.1.(b)’ of the Prospectus, which clearly stipulated that terms of the agreement executed between the Government and the Self Financing Institutions represented by their Association would be binding on the students seeking admission in the Self Financing Institutions. Clause (4) of the Agreement clearly says that the last date for securing admissions in the Self Financing Institutions as sponsored by the Commissioner for Entrance Examinations shall be 26.09.2016 and thereafter, there cannot be any further allotment by the Commissioner. This being the position, the challenge now raised virtually amounts to a ‘Uturn’, seeking to depart from the relevant clauses in the Agreement and the Prospectus, which is not liable to be entertained. It was also pointed out that there was no valid challenge against the relevant Clauses in the Prospectus and as such, the writ petitions are devoid of any merit.

17. Smt. M.A. Vaheeda Babu, the learned counsel appearing for the Self Financing Institutions in W.P(C)Nos.32209 and 31997 of 2016 submits that the said colleges were never parties to the Spot admission conducted on 30.09.2016 and that all the seats which were available after 26.09.2016 were filled up, treating the same as ‘Management quota’, in terms of the Prospectus. If the version of the petitioners concerned is entertained, it will result in loss of seat to the said Institution, which will adversely affect their rights and interests. The very existence of the Self Financing Institutions is based on the fees collected from the students, which provides for meeting the entire infrastructure including salary to the Teachers, Staff, cost of Equipments, Buildings, improvements and such other heads. The fee stipulated to meet the requisite extent is approved by the Admission Supervisory Committee. If the claim of the persons like the petitioners is entertained at this stage, i.e., after the cut off date, it will not be possible for the Institutions to fill up the resultant vacancies and this in turn, will result in lesser fund collection, which will quite adversely affect the very existence of the such Institutions and will reduce the quality of education to be imparted.

18. After hearing both the sides and as conceded by all concerned, this Court does not require any second thought to hold that ‘Merit’ is of paramount importance and that Merit, Fairness and Transparency, which are stated as part of the ‘Triple Test’ to be satisfied, as made clear by the Apex Court ( See

# T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481

# Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697

and

# P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537

which still govern the field) are to be ensured at all levels. Question is whether there is any infringement in this regard, adversely affecting the rights and interests of the petitioners and if so, what could be the remedy..

19. There is no dispute as to the approval of the Prospectus by the Admission Supervisory Committee; the existence of an Agreement executed between the Government and the Self Financing Institutions represented by their Associations; and the binding nature of the orders and proceedings in this regard. The basis for the stipulation in the notification dated 28.09.2016/29.09.2016 denying entry for Spot Allotment scheduled on 30.09.2016 to those students who have already secured admission in Self Financing Institutions is with reference to ‘Clause 11.6.9’ of the Prospectus, the terms of the Agreement executed between the Government and the Self Financing Institutions and the relevant G.O. issued in this regard r/w ‘Clause 2.1.1’ of the Prospectus.

20. ‘Clauses 2.1.1 and 11.6.9’ of the Prospectus read as follows:

2.1.1: Government seats: Merit seats against which the Commissioner for Entrance Examinations makes allotment are called ‘Government Seats’.

(a) Government seats are available in all the Govt. and Aided Colleges.

(b) The availability of Government seats in Selffinancing colleges run by institutions under Govt. control and Private Self-financing colleges will be notified separately. Those candidates who seek admission in Private Self-financing colleges are bound to accept the conditions stipulated in the agreement between Government and Self-financing College Management(s) and deemed to have accepted such conditions.

11.6.9: Spot Allotment: Spot allotment/admission for filling up the remaining vacant seats, if any, may be conducted after the completion of the online allotment process. A qualified candidate included in the rank lists concerned is entitled to attend the Spot allotment/admission process. Candidates who have obtained admission in Government Merit seats for a course shall not be eligible to participate in the Spot Allotment for that particular course. But a candidate admitted in Government Merit seat in a Government Controlled Self Financing College is allowed to participate in Spot Admission for a Government College for any course. The course under Engineering stream are listed in Annexure II (1)(b). The Commissioner for Entrance Examinations is authorized to issue necessary orders regarding Spot Admission/Allotment in due course.”

21. Obviously, Clause 11.6.9 deals with Spot Allotment, which is for the purpose of filling up of the remaining vacant seats, if any, after completion of the ‘online’ allotment process. It is clearly stipulated therein, that the candidates who have obtained admission in the Government Merit seats (Government quota) for a course shall not be eligible to participate in the Spot Allotment for that particular course; which virtually means that such right is there if it is for a different course. The clause also recognises the right of a candidate admitted in the ‘Merit seat’ in a ‘Government controlled Self Financing college’ to participate in such exercise, for admission to the course in a Government College. This is obviously for the reason that the resultant vacancy in the Government Controlled Self Financing Institution, pursuant to such admission in the Spot Allotment, could immediately be filled up then and there by the Government who is having control over such Self Financing Institution and that the vacated seats will not go wasted; nor will there be any loss or damage to the Govt. controlled Self Financing Institution.

22. In the case of other Self Financing Institutions, since they are not parties to the Spot Allotment process, the Original Certificate already surrendered by the students concerned in such Institutions where admissions have been secured, will not be available for Spot Admission and further, there is no opportunity or time to inform the position to such Institutions permitting them to fill up the resultant vacancy even by treating it as part of additional Management Quota. This is more so, when, by virtue of the concluded terms of Agreement, it has been agreed that no such allotment will be made by the Commissioner for Entrance Examinations to any vacancy or lapsed seats after 26.09.2016 and that the respondent Institution would stand permitted to fill up such vacancies as Additional Management seats. Because of the admission given to the candidates having higher merit in the Self Financing Institutions, the next person who was standing in the queue was denied admission in the said Institution and on the date of last Spot allotment, if the person already admitted though with higher rank, is let to go for admission in a Government College, vacating the seat in the Self Financing Institution, it is not possible to have the seat filled up by anybody, who was occupying the next lower level. This in turn will cause irreparable loss and injuries, in financial terms, to the Self Financing Institution, who may find it difficult to run the Institution, having lost the revenue from one of the contributories/source.

23. The term ‘Government Merit seats’ mentioned in ‘Clause 11.6.9’ of the Prospectus is nothing other than ‘Govt. quota seats’ available in the Self Financing Institutions. It is also relevant to note that, by virtue of ‘Clause 2.1.1’, all the terms of the Agreement executed between the Government and the Self Financing Institutions/Association will be binding upon the students, who seek admission in such Institutions. This being the position, in so far as Clauses 11.6.9 and 2.1.1. of the Prospectus are not under challenge, they govern the field and as such, the relevant notification (issued on 28.09.2016/29.09.2016), stipulating that the candidates who have already obtained admissions in a Self Financing Institution will not have a right to participate in the Spot Allotment scheduled to be held on 30.09.2016 is in conformity with the said terms and is not assailable.

24. Though a feeble challenge has been raised against ‘Clause 11.6.9’ of the Prospectus by the petitioner in W.P.(C) 32288 of 2016, the same is not substantiated with reference to the incompetence, if any, of the Government or such other mitigating circumstances in having incorporated the said Clause. So also, the said petitioner has not chosen to include the concerned College (where the petitioner has already obtained admission) in the party array. Similarly, the students concerned who were given Spot admission on 30.09.2016 (whose names have been included in Ext.P8 list therein) have not been made parties to the writ petition filed after the said date and as such, no relief is liable to be granted under any circumstance.

25. Exactly similar issue had come up for consideration before this Court earlier, particularly by way of W.P(C)No.23893 of 2013, seeking to review the Spot Allotment made on 26.09.2013 and 30.09.2013, to declare Clause 2.2.1(b) of the Prospectus as unconstitutional, to declare the right of the petitioner therein to get admitted for BDS course in a Government College by virtue of higher merit, in preference to the persons admitted though with lower merit, merely for the reason that the petitioner was already admitted in a Self Financing Institution based on the higher mark and for such other reliefs. After hearing both the sides, the Bench observed as per the decision reported in

# Hanna Thasnim K.V. vs. State of Kerala and othersILR 2014 (2) Ker. 388

that there was no attempt to compromise with the ‘Merit’ from the part of the Government and that no substantial injury was caused to the petitioner. The challenge raised against the relevant clauses in the Prospectus /Government Orders was repelled and the writ petition was dismissed; however alerting all concerned that the authorities shall be more careful and vigilant in future, giving no room for complaint from any corner.

26. The issue had come up for further consideration again before another Division Bench in W.P.(C)No.29302 of 2015 and connected cases. It was observed as per the judgment dated 30.09.2015 that there was no dispute with regard to the factual aspects and that the marginal violation noted in the given circumstances cannot and would not vitiate the entire Centralised Allotment Process; adding that a fair, transparent and merit-based procedure has been formulated, on the basis of which, allotments have been made. It was also observed that ‘Merit’ was maintained substantially and that the ‘lesser evil was to sustain the admission process and the allotments already made’. It was accordingly, that all the above writ petitions were dismissed by this Court, declining interference.

27. It is brought to the notice of this Court that the Spot allotment scheduled on 30.09.2016 was resulted because of the subsequent developments, which could not be reasonably foreseen earlier. It was only on 3.09.2016, that an order bearing No.G.O.(Rt.)2476/2016/H&FWD was issued by the Government, giving effect to the terms of the Agreement executed between the Government and the ‘Seven’ named Self Financing Medical Colleges, for allotment of students to MBBS course for the academic year 2016-17, based on a Consensual Agreement dated the same day. A similar G.O. was issued on 06.09.2016 in respect of BDS admission for the year 2016-17, based on the Consensual Agreement dated 05.09.2016 entered between the Government and the All Kerala Self Financing Dental College Management Consortium (with the 14 named Colleges, as mentioned therein). In the course of subsequent proceedings, some seats were surrendered from the All India quota of the Medical Colleges as well as Dental Colleges and some seats were vacant under some other heads as well. Further, 50 seats were made available to the Government by the Sree Gokulam Medical College as Government quota, out of the total 100 additional seats sanctioned to them. 25 seats for the ‘BDS’ Course were surrendered by Sri Sankara Dental College, Varkala towards the ‘Government quota’ and all these seats could be filled up only by ‘Spot Allotment’ and hence the notification dated 28.09.2016 and the Press release dated 29.09.2016.

28. In the light of the above discussion and by virtue of ‘Clauses 2.1.1’ of the Prospectus [making all the terms and conditions of the Agreement to be binding upon the students, who have sought for admissions in Self Financing Institutions] and ‘Clause 11.6.9’ of the same Prospectus [restricting entry to spot allotment to those candidates who have already secured admission, except to the extent as permitted by the relevant notification issued in this regard], the claim is not liable to be sustained and no interference is warranted.

29. At the same time, we cannot simply leave the matter as it is. This is for the obvious reason that there is no dispute with regard to the better credentials of the petitioners, who have been given admission in a Self Financing Institution, based on their option, who however were prevented from participating in the ‘Spot Allotment’ for admission in the Government Colleges (which Institutions were also forming part of their higher options). Despite the ‘lesser merit’ position of some candidates who were not qualified enough to have obtained admission even in the Self Financing Institution, they became fortunate to get admission in Government Medical Colleges, pursuant to ‘Spot Allotment’. The object stated was, for ensuring that no seat was let to go vacant/wasted; may be laudable. But the question is, could it not have been done in a better manner, protecting the ‘Merit level’ to the maximum possible extent. This is more so, in view of the observation made by the Bench in 2014 (2)ILR. Kerala Series 388 (cited supra) as contained in the last paragraph, which is reproduced below:

35. Even though we found that the petitioner has not suffered a legal injury by the delayed publication of Ext.R2(d) for the reasons stated above, we hope that the authorities will bestow more attention and care to avoid such complaints in future. It has been time and again clarified by judicial pronouncements of this Court and the Apex Court that in such matter fairness and transparency of administrative actions alone will be appreciated. Hence prompt action is also a necessary concomitant of the above-mentioned virtues. Therefore, we would caution the authorities to be more careful and vigilant so as to avoid any room for complaint in future. ”

30. The instance of violation of Merit (though it be to a limited extent, in the last phase of allotment), is clearly referred to in the subsequent decision (decision dated 30.09.2015 in W.P. (C)No.29302 of 2015 and connected cases) as well. Interference was not made in those cases, obviously for the reason that the procedure followed is based on the relevant terms in the Prospectus and also the relevant Orders/Agreement/Notifications. It was specifically agreed that, after the cut off date (in the instant case, 26.09.2016), there will not be any further allotment by the Commissioner for Entrance Examinations and that the left over seats/lapsed seats could be filled up by the Management Institution as Addl. Management seats. At the same time, it is equally possible for the Government to stipulate in the Prospectus/in the Agreement and also in the relevant Government Orders and also by the Admission Supervisory Committee, in their order of approval that, the displacement of an admitted student from a Self Financing Institution, to secure admission in a Government College for the course concerned or for a better course in the Self Financing Institution concerned could, of course, be subject to the ‘Spot Allotment’ conducted in this regard. The interest of the Self Financing Institutions could be protected by incorporating necessary Clauses to the effect that, all the Self Financing Institutions concerned shall be present with all the relevant records at the time of Spot Allotment as well; including the particulars of the students, who have already been admitted and also that of the students who are still waiting for Admission in the queue. At the time of Spot allotment, if any candidate already admitted in any Self Financing Institution succeeds in securing admission in a Government Medical College/such other Institution for the course/better option, the slot concerned vacated in the Self Financing Institution could be immediately filled up then and there by the candidate of lesser merit, who has turned up for the Spot Allotment (if he is interested) or else to permit the Management of the Self Financing Institutions to fill up the said vacancy as an Additional Management quota then and there, i.e., on any day, before expiry of the time limit. This can very well save the candidates of higher merit to get admission in the Government College/better course in the Government College/such other Institution; at the same time, protecting the rights of the candidates with lesser marks to join the ‘injured’ Self Financing Institution, if he is so interested; whether it be in the ‘Government merit quota’ or in the ‘Management quota’ (as the case may be), satisfying the appropriate extent of fees, as permissible. This will also safeguard the interest of the Self Financing Institutions to see that the seat vacated by the candidate in the process of giving Spot Allotment in the Government Medical/Dental College, would not be left unfilled and to have the same filled up without compromising the ‘Merit’. This exercise, with appropriate modifications to the extent necessary, shall be given effect to by all concerned in respect of the future admissions for the year 2017-18 onwards, notifying the same well in advance, which will only help to avoid possible litigations and save much time of this Court and of the Admission Supervisory Committee; besides that of the Government/authorities concerned. We leave it open for all concerned to approach this Court in respect of future admissions, if adequate safeguard in the above regard is not incorporated in the relevant Orders/Prospectus, as and when the same is published, to deal with the situation with a firm hand.

With the above observations and directions, we decline interference in these writ petitions and they are dismissed accordingly.

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