Education Law; 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.

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.

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