Medical Entrance; Dr. Shyama Manoj Vs. State [Kerala High Court, 13-07-2012]

Medical Course – All India Entrance Examination – Scheduled Caste candidates – Surrender seat of All India Quota – Denying allotment to the petitioner for M.D. Paediatrics seat reserved for Scheduled Caste candidate in the Malankara Orthodox Syrian Church Medical College, Kolenchery for the reason that she did not surrender her seat in the All India Quota is illegal. Merit must be the sole criterion generally.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. M. JOSEPH & K. HARILAL, JJ.

W.P.(C). NO.15861 OF 2012 G

Dr. Shyama Manoj Vs. State

Dated this the 13th July, 2012

FOR PETITIONER(S): BY ADVS.SRI.T.B.HOOD SMT.M.ISHA; FOR RESPONDENT(S): R1 TO R2 BY GOVERNMENT PLEADER SRI.ROSHAN D.ALEXANDER, R5 BY STANDING COUNSEL SRI.ALEXANDER THOMAS, R4 BY ADV.SRI.TONNY GEORGE KANNANTHANAM, R6 BY ADV. SRI.J.MARY HELP JOHN DAVID

JUDGMENT

K.M. Joseph, J.

Petitioner secured admission to the DCH Course in the Government Medical College, Thiruvananthapuram on the strength of her rank in the All India Entrance Examination. She also wrote the Examination held by the State Government. She secured rank No. 967. Petitioner belongs to Scheduled Caste Community. In the list of Scheduled Caste Community, her rank is 18. She had participated in the First and Second round counseling held by the second respondent. By Ext.P3, the second respondent after the final round of the All India allotment, notified the final round allotment process for the State quota seats vide Ext.P3. Petitioner obtained Ext.P4 No Objection Certificate from the Government Medical College, Thiruvananthapuram. One seat of M. D. in Paediatrics was reserved for the Scheduled Caste candidates in the fourth respondent College. According to petitioner, she is entitled to allotment to the said seat reserved for Scheduled Caste candidate. By Ext.P7, however, she has been denied the allotment. Ext. P7 reads as follows:

“While on allotment process you (Rank No.967 Sc-18) attended the counseling on 05/07/2012 and requested for surrender the AIQ seat which has already been availed at Medical College, Thiruvananthapuram and allot a seat from State quota at Malankara Self Financing College. But, as per clause XII of PG prospectus 2012, the request of you cannot be considered, since the surrender seat of AIQ to state up to 22/06/2012 alone will be considered for final counseling.”

2. Petitioner seeks the following reliefs:

“(i) Issue a writ of certiorari or any other writ, order or direction quashing Ext.P7 notice dated 5.7.2012 issued by the 2nd respondent denying allotment to the petitioner.

(ii) Declare that denial admission to the petitioner is illegal, arbitrary and unreasonable.

(iii) Issue a writ of mandamus or any other writ, order or direction commanding the respondents to give allotment and admission to the petitioner for M.D. Paediatrics seat reserved for Scheduled Caste candidate in the Malankara Orthodox Syrian Church Medical College, Kolenchery.”

Counter Affidavit is filed on behalf of the second respondent. Petitioner has filed Reply Affidavit.

3. The second respondent has allotted the additional sixth respondent to the seat in the fourth respondent College for M. D. in Paediatrics. The additional sixth respondent has also filed Counter Affidavit. The sixth respondent was actually pursuing M. D. in Anesthesia in the Government Medical College, Thiruvananthapuram. He is also a member of Scheduled Caste Community. The rank secured by him in the Examination held by the second respondent is 1088 (category rank 30).

4. We heard the learned counsel for the petitioner, learned counsel for the Medical Council of India, learned senior counsel for the fourth respondent, learned counsel for the additional sixth respondent and also the learned Government Pleader.

5. Learned counsel for the petitioner would submit that there is no warrant for denying the allotment to the Course in the fourth respondent College. It appears that the vacancy in the fourth respondent College had already been filled up by admitting one Dr. Hari prior to 31.5.2012. It is further not disputed that he secured spot admission on 31.5.2012 for Post Graduate Course in the Kottayam Government Medical College. The said vacancy has not been filled up then. Learned counsel for the petitioner would further contend that there is no clause which mandates that surrender of a seat in the All India Quota, should be made before 22.6.2012. He refers to Clause 12 (K) in the prospectus issued for the All India Examination. According to him, all seats which are remaining vacant after the allotment of the second round of counseling or falling vacant thereafter shall be deemed to have been surrendered to the respective States. He would also submit that the petitioner was not aware of the vacancy in M.D. Paediatrics and she became aware of it only on 1.7.2012 when it was published in the web site. He also relies on the regulations made by the Medical Council of India. He points out that seats could be filled up by 31.5.2012, if they are vacant for any reason. Therefore, according to him, when that time limit is extended till 15.7.2012, on the same logic and principle, the admission can be given till 15.7.2012. According to him, the very basis for the Government refusing the choice is that the seat which will fall vacant will go waste, is without basis. According to him, there is nothing wrong in the Government of Kerala filling up the vacancy of DCH which would arise, if the petitioner is given admission to M.D. in Paediatrics. He would further submit that the Court must remember that the petitioner is clearly the more meritorious candidate. He would also point out that the petitioner could not be expected to surrender the All India seat, particularly when the petitioner was ranked eighteen in the list of Scheduled Caste candidates and the last rank holder from the list of Scheduled Caste candidates is No.13 who is Dr. Hari who was admitted in the fourth respondent College.

6. Per contra, learned Government Pleader is unable to point out any clause in the prospectus which supports the rejection of the option of the petitioner. Clause XII, according to him, does not absolutely support the Government. He would submit that the date 22.6.2012 relied on in Ext.P7 is based on Ext.R2(h) and R2(i). Ext.R2(h) is the schedule published by the DGHS. It shows, inter alia, that the transfer of vacancies to the State Quota is to be done on 22.6.2012. Ext.R2(i) shows that as per the directions of the Supreme Court, all vacant/surrendered/non-joining seats are now being surrendered to the participant States, inter alia, with effect from 22.6.2012 for further necessary action. According to him, therefore, the Government of the State has acted on the basis of Exts.R2(h) and (i) and there cannot be a question of surrender by a candidate in the All India Quota after 22.6.2012. More importantly, he contended that the acceptance of petitioner’s case would result in the lapse of a precious seat and, therefore, the petitioner cannot be given relief in the discretionary jurisdiction under Article 226 of the Constitution of India. Learned Government Pleader also drew our attention to Clause XIII of Ext.P1 prospectus to contend that the petitioner would be liable to pay damages. In this context, he drew our attention to Clause XIII (2) ( c ) of Ext.P1, which reads as follows: