(2012) 264 KLR 759 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934 WP(C).No. 10816 of 2012 (B) --------------------------- PETITIONER(S): ----------------------- 1. DR. BONEY BAIJU, S/O.P.C.BAIJU, AGED 25, PULIKKAL HOUSE THENKULAM ROAD, CHERIYAVAPALSSERY, MEKKADU P.O. ANGAMALI, ERNAKULAM DISTRICT - 683589. 2. DR.ARUN K. AIPE, S/O.AIPE K.C., AGED 27, KUNNEL, VETTIKKAL MANNUTHY P.O., THRISSUR-680651. BY ADVS.SRI.N.J.MATHEWS SRI.P.RAVEENDRAN PILLAI RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT STATE SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. COMMISSIONER OF ENTRANCE EXAMINATIONS, GOVERNMENT OF KERALA, HOUSING BOARD BUILDING SANTHI NAGAR, THIRUVANANTHAPURAM-695001. 3. DIRECTOR OF MEDICAL EDUCATION, GOVERNMENT OF KERALA, MEDICAL COLLEGE CAMPUS THIRUVANANTHAPURAM-695011. 4. MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS SECURITY, POCKET-14, SECTOR 8 DWARAKA PHASE, NEW DELHI-110007. *ADDL. R5 IMPLEADED *5. DR. DHANIN P., AGED 26 YEARS, S/O. MR. P. POKKEN, 'THULASI', THIKKODI, NEAR MEETHALE PALLI, KOZHIKODE - 672 539 *ADDL. R5 IS IMPLEADED AS PER ORDER DT. 30/5/2012 IN I.A. NO. 6976/12. *ADDL.R6 & R7 IMPLEADED *6. DR. RATHEESH KUMAR V.R., ASSISTANT SURGEON, GOVERNMENT HOSPITAL, ATTINGAL, RESIDING AT V.R. BHAVAN, NETHAJIPURAM P.O., POTHENCODE, THIRUVANANTHAPURAM. *7. DR. SITARA RAVINDRANATH, ASSISTANT SURGEON, COMMUNITY HEALTH CENTRE, MULLASSERY, RESIDING AT XIII/304, POOVATHUR P.O., THRISSUR - 680 508. *ADDL. R6 & R7 ARE IMPLEADED AS PER ORDER IN IA NO. 7322/2012 DATED 14/06/2012. *ADDL. R8 IMPLEADED *8. DR. T.G. VINOD, SON OF GOVINDANKUTTY NAIR, AGED 40 YEARS, 'PRAYAGA', MAMBEKKATTU, CHEVAYOOR PRESENTLY WORKING AS JUNIOR CONSULTANT IN ORTHOPAEDICS, TALUK HEAD QUARTERS HOSPITAL, KOYILANDY, KOZHIKODE. *ADDL. R8 IS IMPLEADED AS PER ORDER IN IA NO. 8640/2012 DATED 06/07/2012. R1 TO R3 BY ADVOCATE GENERAL SRI. K.P. DANDAPANI BY GOVT. PLEADER SRI. ROSHAN D. ALEXANDER R4 BY ADV. SRI.ALEXANDER THOMAS, SC, MCI R5 BY ADV. SRI.KALEESWARAM RAJ BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.M.P.MOHAMMED ASLAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/06/2012, ALONG WITH WPC. 10968/2012& CONNECTED CASES, THE COURT ON 06-07-2012 DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS :
RESPONDENTS' EXHIBITS :
//TRUE COPY// P.S. TO JUDGE Mn T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.10816, 10968, 11315, 11757, 12062 & 14614 of 2012 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of July, 2012 J U D G M E N T All these writ petitions are concerning a common issue and therefore they have been heard together. 2. The whole issue that is raised in these writ petitions is, whether the petitioners are entitled to get a direction to the respondents to re-evaluate the answer sheets in the common Entrance Examination held on 19.2.2012 for admission to Post Graduate courses in Medicine and Dental Surgery. The State and the party respondents have raised objections to the maintainability of the writ petitions on various grounds. 3. The writ petitions, viz. W.P.(C) Nos.10816/2012, 10968/2012 and 14614/2012 are in respect of petitioners who are seeking admission to the Post Graduate Degree Courses in Medicine, whereas the petitioners in W.P. (C) Nos.11315/2012, 11757/2012 and 12062/2012 are seeking admission to Post Graduate courses in various branches under the Dental Surgery. 4. Heard learned counsel for the petitioners Shri N.J. Mathews, Shri Jacob P.Alex, Shri R.T. Pradeep, Shri P.R. Sreejith and Shri Anil S. Raj, learned Advocate General Shri K.P. Dandapani and learned Government Pleader Shri Roshan D. Alexander, appearing for the State, learned Senior Counsel Shri Kurian George Kannanthanam, learned counsel Shri Ahzar, Shri Kaleeswaran Raj, Shri M.P. Prakash, Shri M.P.M. Aslam, Shri P.K. Manoj Kumar and Shri T.B. Hood, for the party respondents who got themselves impleaded and Shri Alexander Thomas, learned Standing Counsel appearing for the Medical Council of India. 5. First I shall refer to the averments in various writ petitions. In W.P.(C) No.10816/2012 there are two petitioners who are aspirants for the Post Graduate/Diploma courses in Medicine/Surgery. They appeared for the common entrance examination held on 19.2.2012 and the result of which was declared on 9.3.2012. The valuation of the answer sheets was done using Optical Mark Reading (OMR) system. After the disposal of W.P.(C) No.7258/2012 the petitioners received two question papers and answer versions as per Exts.P2 and P3. According to them, the answers given in respect of certain questions in the answer keys, as detailed in para 5 of the writ petition, are wrong. It is therefore contended that such wrong answers resulted in variation in the final marks obtained by the petitioners. They seek for a direction to the second respondent to re-evaluate the answer sheets and to prepare a fresh rank list of candidates who appeared in the common entrance examination, as a sequent to relief No.1. 6. In W.P.(C) No.10968/2012 the petitioners are similarly situated and they are also aspirants for the Post Graduate/Diploma course in Medicine/Surgery. The details of the wrong answers in the answer key are cataloged in para 5 of the writ petition. Similar prayers have been made in the said writ petition also. 7. In W.P.(C) No.14614/2012, the petitioner had expected to obtain 60% marks and a high rank in the entrance examination. But her name did not appear in the list of successful candidates. After the judgment in W.P. (C) No.7258/2012 and after completing various formalities by way of remittance of fee, etc. the petitioner received question paper and answer keys. According to the petitioner, answers given to certain questions as mentioned in para 5 of the writ petition, are wrong. The main prayer is to direct the respondents to appoint an expert panel and direct preparation of a fresh rank list. 8. In W.P.(C) No.11315/2012 there are five petitioners out of which except the first petitioner, all others have been declared eligible to be considered for admission. They are rank Nos.149, 62, 77 and 90 respectively. According to the first petitioner also, she had done well in the entrance examination. After she approached this Court for issuance of copies of answer sheets, answer key, etc., in W.P.(C) No.8871/2012, the first petitioner received copy of question booklet and answer key, which are produced as Exts.P2 and P3. Similar steps have been taken by other petitioners also by filing W.P.(C) No.6632/2012. In para 5 of the writ petition, a table has been produced to show that there are incorrect answers in respect of the total number of twenty questions given in the answer key and they have indicated the correct answer in column 4. The details of the textbooks relied upon to justify the answers given by the petitioners, are given in column 5 and they have been produced as Exts.P5(a) to P5(ac) in the writ petition. The petitioners are mainly seeking for a direction to respondents 1 to 3 to re-cast/re-compute the OMR answer scripts of the Kerala State Entrance Test, 2012 for admission to the Post Graduate Course in Dental Surgery with correct answer key within a time limit to be fixed by this Court and for a direction to respondents 1 to 3 to prepare a fresh rank list in accordance with relief No.1 and to allot candidates accordingly. A declaration is sought that the rank list dated 5.3.2012 is invalid. 9. In W.P.(C) No.11757/2012 similar pleas have been made by the petitioner who is having 55th rank in the merit list. The petitioner has given in para 7 of the writ petition, the details of certain answers, which according to him, are wrong. Relief is sought to direct the respondents to revamp the answer key by incorporating correct answers with respect to 17 questions and to cancel two questions which do not contain the correct choice of answer and to revamp the result of common entrance examinations, within a time limit to be fixed by this Court. 10. In W.P.(C) No.12062/2012 both the petitioners are having rank Nos.301 and 280 respectively in the general quota for admission in Dental Surgery. According to them, the score secured by them was found to be substantially lower than what was expected. They also obtained the answer keys. A description is given in para 11 that the answers of 18 questions specified therein are wrong and they have given authority for the same in the last column. They are also seeking for various reliefs including quashing of Exts.P3 rank list and P4. 11. The substantial contention raised by the petitioners is that there should be a just and proper assessment of comparative merits of candidates and an evaluation based on wrong answer key will deprive the chance for meritorious candidates to get proper ranking. It is also pointed out that the authorities have not published the questions and the answer key, similar to the method adopted in other examinations. For a fair and transparent procedure, the question papers and answer key should have been published inviting objections. 12. Since preliminary objections have been raised with regard to the maintainability of the writ petitions, I will refer to those contentions. Learned Standing Counsel for the Medical Council of India raised the following contentions. It is submitted that the Apex Court in the decision in Medical Council of India v. Madhu Singh and others {(2002) 7 SCC 258} has upheld the importance of a time schedule for the duration of course as well as the period during which the admission will have to be finalised. The same is binding on all the authorities. In the later decision of the Apex Court in Mridul Dhar (minor) and another v. Union of India and others {(2005) 2 SCC 65} also, the importance of the time schedule and the strict adherence of the same, have been laid down As far as the time schedule for completion of admission process for Medical and Dental courses, going by para 11 of the judgment, it can be seen that the entire admissions will have to be completed by 31.5.2012. These decisions and the principles thereof have been heavily relied upon by the Apex Court in a recent judgment in Civil Appeal No.4318/2012 (Priya Gupta v. State of Chattisgarh) and the Apex Court has come down heavily on the authorities for varying the time schedule. It is pointed out that such directions are binding on this Court as well as the authorities and therefore this Court will not be justified in giving any direction in the matter at this stage as it will be a futile exercise also. Therefore, learned Standing Counsel submitted that if any direction is issued by this Court with regard to the pleas raised by the petitioners, it will violate the binding directions of the Apex Court and therefore the re-publication of rank list, counselling and the other procedures cannot be reopened at all. Once the process of admission is over, no authority can tamper with the same. Herein, the various rank holders have attended the counselling and allotment of seats have been made in various colleges including self financing colleges. If a re-arrangement is made in the rank list, it will affect the prospects of various persons. Many of the candidates would have chosen the seats under All India quota and State quota, as the case may be, depending upon the allotment in the particular stages. Those cannot be reopened now. 13. Shri Kurian George Kannanthanam, learned Senior Counsel appearing for some of the party respondents who got themselves impleaded, submitted that the decisions of the Apex Court, as pointed out above, clearly bars an investigation by this Court into the matters sought for by the petitioners, at this stage. Learned Senior Counsel also submitted that the pleas raised by the petitioners are not supportive of issuance of any order, to any of the respondents to consider whether the key answers have gone wrong or not. It is submitted that the pleadings in W.P.(C) Nos.10816/2012 and 10968/2012 would not show that any of the petitioners have attempted answers in respect of the disputed questions and they have suffered because of the alleged wrong answers adopted by the examiner. Therefore, learned Senior Counsel also submitted that the writ petition can be rejected for want of such pleas also. It is also submitted that the petitioners have not impleaded in the writ petition, the persons included in the rank list. Any attempt to tamper with the rank list without the affected persons in the party array, therefore cannot be accepted. Reliance is placed on the decisions of this Court and that of the Apex Court to contend that in the absence of necessary parties in the writ petition, the petitioners cannot plead for such reliefs and accordingly it is prayed that the writ petitions may be dismissed. 14. Shri Kaleeswaram Raj appearing for some of the respondents in W.P.(C) Nos.10816/2012 & 10968/2012 reiterated the above contentions by relying upon various judgments of the Apex Court including the judgments relied upon by the learned Standing Counsel for the Medical Council of India. In addition to the contentions already noted, it is submitted that in the absence of any provision for re-evaluation, this Court cannot allow the prayer and the judgments of the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar {(1984) 4 SCC 27}, Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Patna and others {(2004) 6 SCC 714}, and Manish Ujal and others v. Maharishi Dayananda Saraswati University and others {(2005) 13 SCC 744} have been relied upon. Learned counsel also submitted that a Division Bench of this Court in the decision reported in Vinod v. State of Kerala (2012 (2) KLT 683), considered various questions with regard to the same rank list. It is submitted that the Division Bench was of the view that the withdrawal of negative marking and the concession given to service quota candidates so far as negative marks, is violative of Article 14 of the Constitution of India and in the light of the said finding, a direction was issued to proceed with the preparation of rank list based on the evaluation as contemplated under the prospectus and the rank list was finalised accordingly. It is submitted that the sixth petitioner in W.P.(C) No.10968/2012 was also a party to the said judgment and no plea was raised before this Court as now raised and therefore the petitioners cannot be heard to say that the key answers are wrong. Learned counsel also submitted, by relying upon the averments in the counter affidavit, that the key answers are justified in the light of the various text books and other details mentioned in the counter affidavit. It is also submitted that in the prospectus itself, the candidates were advised to adopt the most probable answer and even if two views are possible in respect of an answer, there cannot be any justification to hold that the answer key is wrong. It is also submitted that the decision of the Apex Court in Kanpur University through Vice Chancellor and others v. Samir Gupta and others {(1983) 4 SCC 309} clearly lays down the principle that the answer key cannot be said to be wrong by adopting the method of inferential process of reasoning or by a process of rationalisation. It is submitted that the answer key has been prepared based on the syllabus and not on the basis of any textbooks and therefore also the petitioners' contention cannot be accepted. Learned counsel further submitted that the writ petitions are liable to be dismissed for non joinder of necessary parties. It is submitted that after 31.5.2012, the candidates who opted for State quota cannot opt for any seats in All India quota. Therefore, a re-arrangement at this stage will pave way for a calamitous situation. My attention was invited to various decisions of the Apex Court in this regard also. 15. Mr. M.P. Prakash, learned counsel appearing for some of the party respondents, submitted that the writ petitions are not maintainable. It was pointed out that after the cut off date, no directions can be issued. The learned counsel, by relying upon various decisions of this Court and the Apex Court, submitted that necessary parties have not been arrayed as respondents. The decisions relied on are: State of Kerala and another v. Rafia Rahim (1978 KLT 369), Kanpur University v. Samir Gupta and others {(1983) 4 SCC 309}, Siraj v. High Court of Kerala (2006 (2) KLT 923 - SC) and Sanchit Bansal and another v. Joint Admission Board and others {(2012) 1 SCC 157}. It is also submitted that there is no provision for revaluation, in the prospectus. 16. Learned Advocate General Shri K.P. Dandapani submitted that in the light of the decisions of the Apex Court, the last date for admission of students is 31.5.2012. The said scheme cannot be violated by anybody in view of the recent decision of the Apex Court in Priya Gupta's case (supra). It is submitted that the schedule fixed by the Supreme Court is the law of the land. Learned Advocate General also relied upon the following decisions to contend that without the junction of necessary parties, viz. the candidates who have got admission, no relief can be granted: A.S. Parmar v. State of Hariana (1986 Suppl. SCC 283), Madan lal v. State of J & K. {(1995) 3 SCC 486} and Siraj v. High Court of Kerala (2006 (2) KLT 923 SC). It is also contended that after having participated in the examination, it is not open to the petitioners to turn round after they failed in the examination. Learned Advocate General also submitted that many of the petitioners have found their place in the rank list and have been granted admission also and one or two petitioners, even though were granted admission, did not take admission. It is submitted that the said scenario will also go in a long way in rejecting the contentions. The learned counsel appearing for other party respondents supported the arguments. 17. Shri Jacob P. Alex and Shri N.J. Mathews, learned counsel for the petitioners contended that the schedule fixed by the Apex Court in the decisions relied upon by the learned counsel for the respondents, will not deter this Court from examining the matter on merits. It is submitted that what is involved is the challenge against the process attempted by the official respondents, which should have been transparent. My attention was invited to the pleadings in the writ petitions to show that many of the answers are wrong. It is submitted that for each answer one candidate could gain four marks and if a wrong answer is given, one negative mark also will be added. Therefore, many of the parties concerned were deprived of a correct ranking in the rank list. It is submitted that no facility was given to object to the key answers and the same has resulted in denying a fair and proper preparation of the rank list. It is also submitted that admission in a course like this, should be fair, transparent and shall be in terms of the equality provided under Article 14 of the Constitution of India. It is submitted that there is no delay on the part of the petitioners in approaching this Court and the details of the respective dates were brought to my notice in that regard. Shri Jacob P. Alex also submitted that when Writ Petition No.11315/2012 was admitted on 15.5.2012, this Court ordered that respondents 3 and 4 shall file a statement before 30.5.2012 regarding the specific mistakes pointed out by the petitioners in the writ petition. It is pointed out that none of the respondents have cared to comply with the directions in the order passed by this Court and therefore they cannot be heard to say that the cut off date being over, no direction can be issued by this Court. Shri Jacob P. Alex relied upon the decisions of the Apex Court in Abhijit Sen and others v. State of U.P. And others {(1984) 2 SCC 319} and Romil B. Shah (Dr.) and others v. State of Gujarat and others {(2006) 6 SCC 268}, Guru Nanak Dev University v. Saumil Garg and others {(2005) 13 SCC 749} and Manish Ujwal v. Maharishi Dayanand Saraswati University {(2005) 13 SCC 744} and other decisions in this context. It is submitted that the petitioners have filed I.A. No.7977/2012 for a direction to the respondents to furnish the names and addresses of the persons who have been admitted for P.G. Dental Courses 2012, for enabling the petitioners to implead them. Another interlocutory application as I.A. No.6978/2012 has been filed by the petitioners to appoint technical experts for evaluation of the key answers. Learned counsel also suggested that the Director of Medical Education can be directed to appoint experts for evaluation of the matter, promptly. 18. Shri N.J. Mathews learned counsel appearing for the petitioners in W.P.(C) Nos.10816/2012 and 10968/2012 and Shri Jacob P. Alex, learned counsel appearing for the petitioners in W.P.(C) No.11315/2012 vehemently submitted that the preliminary objections are not sustainable. Learned counsel Shri Mathews explained that the wellknown grounds to oppose the maintainability are: alternate remedy, delay and laches, conduct of party, disputed questions of fact and the like one and none of them are present here. While inviting my attention to the requirement to have an examination of the key answers by experts, learned counsel Shri Mathews relied upon the following decisions: Maqbulunissa v. Union of India (AIR 1953 All. 477), The General Manager, South Central Railway, Secunderabad and another v., A.V.R. Siddhanti and others (AIR 1974 SC 1755), Kanpur University v. Samir Gupta {(1983) 4 SCC 309}, Anurag Mishra v. State of M.P. (AIR 1992 MP 271), Abhijit Sen and others v. State of U.P. And others {(1984) 2 SCC 319} and Madhumohan v. State of Kerala (2000 (2) KLT 669). It is submitted that the writ petitions are not defective for not including all the candidates included in the rank list, as only necessary parties alone need be impleaded and the directions are sought only against the official respondents. These arguments were supported by the learned counsel appearing for the petitioners, in the other writ petitions. 19. The crucial question therefore is whether the cut off date for admission being over as on 31.5.2012, any direction can be issued by this Court at this stage. In fact, learned Standing Counsel for the Medical Council of India, Shri Alexander Thomas submitted that the Apex Court as per order in I.A. No.344 in I.A. No.16 in Civil Appeal No.1944/1993, as per order dated 1.6.2012 has extended the time upto 15.7.2012 for filling up the vacancies which might arise after the third counselling. Therefore, it is submitted that only to that extent alone the admissions have been permitted and this also will go against the contentions of the petitioners. The copy of the said order was placed for perusal. In fact, the said order was passed in an application for modification/clarification, to enable the State Government/private self financing Medical Colleges to fill up the vacancies which might arise in case the candidates of All India quota do not join the Post-Graduate course in the various Medical Colleges and time is extended upto 15.7.2012. 20. I shall first refer to the decision of the Apex Court in Madhu Singh's case {(2002) 7 SCC 258}wherein the necessity to have a time schedule for the duration of the course and the period during which the admissions can take place, have been settled. Para 23 of the judgment reads as follows: "23. There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course. In conclusion (i) There is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education; (ii) even if seats are unfilled that cannot be a ground for making midsession admissions; (iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year; (iv) MCI shall entrust that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission; (v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time; (vi) no variation of the schedule so far as admissions are concerned shall be allowed. (vii) in case of any deviation by the institution concerned, action as prescribed shall be taken by MCI." It is important to note that by clause (vi) of para 23, the Apex Court declared that "no variation of the schedule so far as admissions are concerned, shall be allowed" and in clause (vii) it is provided that " in case of any deviation by the institution concerned, action as prescribed shall be taken by the MCI." Therefore, it is the responsibility of the Medical Council of India itself to see that the admissions are completed as per the time schedule. 21. The Apex Court in Mridul Dhar's case {(2005) 2 SCC 65} in para 11, fixed the time schedule for completion of admission process for Medical and Dental courses. As far as postgraduate courses are concerned, it can be seen that the cut off date is 31st May. After referring to various issues concerning the same, the following directions have been issued in para 35: "35. Having regard to the aforesaid, we issue the following directions : 1. All participating States and Union Territories, Board of Secondary Education shall declare 10+2 result by 10th June of every year and make available the mark-sheet to the students by 15th June. The aforesaid condition would not apply to West Bengal for the year 2005. As already noticed, the West Bengal would make available to the concerned students the mark-sheets by 15th June, 2005. Heads of Boards would be personally liable to ensure compliance. 2. The time table mentioned in Notification dated 25th February, 2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State Medical/Dental Entrance Examination shall be declared before 15th of June. 3. The States/Union Territories shall complete the admission process of first round of State Level Medical/Dental College admission by 25th July i.e. a week before start of second round counseling or allotment of seats under All India Quota. The correct vacancy position shall be intimated by the Chief Secretary to the DGHS by 26th July. It shall be verified by the Head of the Institution/or Head of the Medical Institution/Health Department in the State. 4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territories and/or Health Secretaries to ensure compliance of the directions of this Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequence. 5. All seats in All India Quota must be fully disclosed giving details of the date of recognition/renewal to DGHS before a date to be notified by DGHS and the same shall be duly published. 6. By 31st October, the State through Chief Secretaries/Health Secretaries shall file a report in regard to admissions with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face consequences for violation. 7. The DGHS shall file by 31st January, 2005 report in regard to feasibility of conducting counselling through the process of video conferencing. 8. The DGHS shall file report within three months on the aspect of Section 10-A seats being subjected to 15 per cent All India Quota and about the increase of the quota from 15 per cent to 20 per cent. 9. The DGHS shall also file a report within three months on the aspect of constitution of high-power Committee/Ombudsman. 10. The seats allotted upto 15th July, shall also be subjected to respective State Quotas. 11. If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year. 12. The time schedule for grant of admission to postgraduate courses shall also be adhered to. 13. For granting admission, the merit determined by competitive examination shall not be tinkered with by making a provision like grant of marks by mode of interview or any other mode. 14. Time schedule for establishment of new college or to increase intake in existing college, shall be adhered to strictly by all concerned. 15. Time schedule provided in Regulations shall be strictly adhered to by all concerned failing which defaulting party would be liable to be personally proceeded with." Sub paragraphs 12 and 15 emphasise the fact that time schedule for grant of admission to postgraduate course shall also be adhered to and it will be adhered to by all concerned, failing which the defaulting party would be liable to be personally proceeded with. 22. In the recent judgment in Priya Gupta's case (Civil Appeal No.4318/2012) these legal positions have been reiterated. The alleged violation of the directions above noticed, was the subject matter which was considered therein. In para 20, all the binding decisions of the Apex Court including Mridul Dhar's case (supra) have been considered and it was held thus in para 24: "Further, in the case of Medical Council of India v. Madhu Singh & Ors. {(2002) 7 SCC 258}, this Court declared two very important principles. Firstly, it declared that mid-stream admissions should not be permitted and secondly, noticing the practice of compassion in review of such admissions, this Court also held that later or mid-stream admission, even just four months after beginning of the classes, cannot be permitted." In para 25, it was held as follows: "A consistent and clear view held by this Court is that the regulations framed by the MCI are binding and these standards cannot be deviated from." The adverse consequences of non adherence were considered in para 27 and it was declared that "none of the authorities are vested with the power of relaxing, varying or disturbing the time schedule or the procedures of admission, as provided in the judgments of this Court and the Medical Council of India Regulations." The following findings have been rendered in para 27: "Now, let us examine the adverse consequences of non-adherence to the prescribed schedules. The schedules prescribed have the force of law, inas much as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counseling. We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court and the Medical Council of India Regulations." In para 28, further directions have been issued as follows: "28. The Medical and Dental Councils of India, the Governments and the Universities are expected to act in tandem with each other and ensure that the recognition for starting of the medical courses and grant of admission are strictly within the time frame declared by this Court and the regulations. It has come to the notice of this Court that despite warnings having been issued by this Court and despite the observations made by this Court, that default and non-adherence to the time schedules shall be viewed very seriously, matters have not improved ........................................................................................... The consistent effort of this Court to direct corrective measures and adherence to law is not only being thwarted by motivated action on the part of the concerned authorities, but there has also been a manifold increase in arbitrary admissions. Repeated defaults have resulted in generating more and more litigation with the passage of time. This Court, thus, now views this matter with greater emphasis on directions that should be made to curb incidents of disobedience." Finally, in para 30, various directions have been issued after entering the following findings: "Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the above-stated principles. Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and simplistically, the action that is necessary to ameliorate the process of selection. Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned,." In para 31, the consequences in default of the compliance with the conditions, have been stressed in the following words: "31. All these directions shall be complied with by all concerned, including Union of India, Medical Council of India, Dental Council of India, State Governments, Universities and medical and dental colleges and the management of the respective universities or dental and medical colleges. Any default in compliance with these conditions or attempt to overreach these directions shall, without fail, invite the following consequences and penal actions:- a) Every body, officer or authority who disobeys or avoids or fails to strictly comply with these directions stricto sensu shall be liable for action under the provisions of the Contempt of Courts Act. Liberty is granted to any interested party to take out the contempt proceedings before the High Court having jurisdiction over such Institution/State, etc. b) The person, member or authority found responsible for any violation shall be departmentally proceeded against and punished in accordance with the Rules. We make it clear that violation of these directions or overreaching them by any process shall tantamount to indiscipline, insubordination, misconduct and being unworthy of becoming a public servant. c) Such defaulting authority, member or body shall also be liable for action by and personal liability to third parties who might have suffered losses as a result of such default. d) There shall be due channelization of selection and admission process with full cooperation and coordination between the Government of India, State Government, Universities, Medical Council of India or Dental Council of India and the colleges concerned. They shall act in tandem and strictly as per the prescribed schedule. In other words, there should be complete harmonisation with a view to form a uniform pattern for concerted action, according to the framed scheme, schedule for admission and regulations framed in this behalf. e) The college which grants admission for the current academic year, where its recognition/approval is granted subsequent to 15th July of the current academic year, shall be liable for withdrawal of recognition/approval on this ground, in addition to being liable to indemnify such students who are denied admission or who are wrongfully given admission in the college. f) Upon the expiry of one week after holding of the second counseling, the unfilled seats from all quotas shall be deemed to have been surrendered in favour of the respective States and shall be filled thereafter strictly on the basis of merit obtained in the competitive entrance test. g) It shall be mandatory on the part of each college and University to inform the State and the Central Government/competent authority of the seats which are lying vacant after each counseling and they shall furnish the complete details, list of seats filled and vacant in the respective states, immediately after each counseling. h) No college shall fill up its seats in any other manner." 23. The Apex Court had considered in Medical Council of India v. Manas Ranjan Behera and others {(2010) 1 SCC 173}, the importance of the directions issued in Mridul Dhar's case {(2005) 2 SCC 65}. In para 2, it was held thus: "It may be noticed in Mridul Dhar v. Union of India {(2005) 2 SCC 65} this Court directed that all the parties shall comply with the directions issued by this Court as regards admission of students in the medical and dental colleges. In Direction 15 of para 35 of the judgment, we had also indicated. "Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with." The Apex Court, on the particular facts of the case, condoned the delay as a one time measure and finally in para 3 it was directed thus: "However, we clarify that the time schedule prescribed by this Court should be followed strictly." 24. Manish Ujwal's case {(2005) 13 SCC 744} is a case where in respect of six key answers there was an agreement that they were incorrect. While considering the question regarding the manner in which the situation has to be dealt with, the Apex Court in para 8 held thus: "......... It is possible that fresh evaluation by feeding correct key answers to the six questions may have adverse impact also on those who may have already secured admission on the basis of the results declared and ranking given by feeding incorrect keys in relation to these questions. Though we are of the view that the appellants in particular and the student community in general, whether one has approached the court or not, should not suffer on account of demonstrably incorrect key answers but, at the same time, if the admissions already granted as a result of first counselling are disturbed, it is possible that the very commencement of the course may be delayed and the admission process for the courses may go beyond 30.9.2005, which is the cut-off date, according to the time-schedule in the Regulations and as per the law laid down by this Court in Mridul Dhar (Minor) v. Union of India {(2005) 2 SCC 65}. In this view, we make it clear that fresh evaluation of the papers by feeding correct key answers would not affect the students who have secured admissions as a result of the first counselling on the basis of ranking given with reference to the results already declared." It is clear that their Lordships emphasised the fact that students who have secured admissions already on the basis of the first counselling, need not be disturbed. Learned counsel for the petitioners and learned counsel appearing for the respondents relied upon this decision in support of their respective pleas. But it can be seen that in that case directions have been issued due to the fact that only the first stage of the counselling alone was over and the second counselling was fixed from 25.8.2005 and accordingly the Apex Court directed in para 11, re-evaluation of all the questions by feeding correct answers and the assignment of ranks were directed to be done accordingly. Therefore, the discussion in para 8 will clearly show that admissions already granted and the manner in which admissions have been proceeded with, have a bearing in the matter. After considering the impact of the directions in Mridul Dhar's case (supra), and the cut off date fixed as 30.9.2005 alone, the directions have been issued. Therefore, the above judgment also will support the plea of the respondents with regard to the maintenance of cut off date. 25. I shall now refer to the counter affidavit filed by the third respondent in W.P.(C) No.11315/2012. In para 5, it is mentioned that "question papers and answer keys have been prepared by the subject experts, outside the State to safeguard the confidential nature of the Entrance Examinations. They are competent authorities of Medical Education having All India recognition. After the conduct of the Examinations, complaints were received regarding one question which allegedly had two correct choices. After getting the opinion of the experts we have deleted one question. This question has not been included for valuation and no marks have been awarded for this deleted question to any candidate. The marks obtained for the remaining 199 questions have been multiplied by 200/199 to get the actual marks. The above formula is applied to award proportionate marks based on the score of the candidates in the questions considered for valuation (excluding deleted questions) to compensate the loss of marks for the deleted questions. This has been notified by the Office of the Commissioner for Entrance Examinations as per Office Notification No.2270/MDS/2012/TA4/CEE dated 5.3.2012. This provisional rank list and the results of Service Quota candidates were made available for reference on the website www.cee.kerala.org. Accordingly the results have been published on 5.3.3012. The petitioners did not file any complaints in this regard till date, not even at the time of counselling process. If the petitioners had any complaints relating to the questions, they would have lodged their complaints at any rate before finalisation of result." In para 6, it is also mentioned that Entrance Examination is being conducted on the basis of the syllabus and no specified text books have been prescribed other than the syllabus. It is also stated that in an examination where no specific textbooks have been prescribed, it is for the experts in the subject to give the "most appropriate response" for the questions or to say whether a question is to be deleted on account of the presence of more than one appropriate response or for some other reasons. It is also stated that the third respondent is not an expert to examine the correctness of the question and answers set for in the examination. 26. In para 11 of the counter affidavit, while referring to the objective type (multiple choice) questions, it is mentioned that each question was given four distracters as (A), (B), (C) and (D). and the candidates have to choose the most appropriate response from the given four. With regard to the ranking of the petitioners, in para 17, certain details have been furnished. Petitioners 4 and 5 appeared and got allotment in the counselling conducted on 28.5.2012. The fourth petitioner who is ranked 77, got allotment in Royal Dental College, Palakkad in general merit and the fifth petitioner scored 90th rank and got allotment in PMS College of Dental Sciences and Research, Thiruvananthapuram. The last rank of the candidate admitted under the general merit is 97. It is also mentioned that had they appeared for the counselling process, the third petitioner in W.P. (C) No.11315/2012 (rank No.62) and the petitioner in W.P.(C) No.11757/2012 (Rank No.55), would have got admission and allotment. 27. In the counter affidavit filed by the third respondent in I.A. No.7074/2012 in W.P.(C) No.11315/2012 it is mentioned that the admission process has already been completed and the last rank holder who secured 116th rank, got admission under general merit, for MDS course. The petitioner in W.P.(C) No.11757/2012 ranked 55, did not attend the counselling. 28. In the counter affidavit filed in W.P.(C) No.10816/2012, it is mentioned in para 6 that the question papers and answer keys have been prepared by the subject experts, outside the State to safeguard the confidential nature of the Entrance Examination. After the conduct of the Examinations the third respondent has received a few complaints and referred them to the subject experts for the verification of the genuineness of the complaints. It is further averred that:- "After getting their opinion, we have deleted two questions in Paper I (ie Question No.88 & 107 in Version A and question No.23 & 42 in Version B) and two questions in Paper II (i. Question No.31 & 129 in Version A and 59 & 111 in Version B), on the basis of the recommendations of the subject experts. Accordingly, the results have been published on 9.3.2012. The petitioners did not file any complaints in this regard till date, not even at the time of counselling process. If the petitioners had any complaints relating to the questions, they would have lodged their complaints at any rate before finalisation of result." 29. In para 8 it is stated that Entrance Examination is being conducted on the basis of the syllabus prescribed by the Medical Council of India. The ranking obtained by the petitioners and other disqualified candidates are given in para 14 as a chart. The petitioner in W.P.(C) No.10816/2012 had obtained rank as 8411 and one of the petitioners in W.P.(C) No.10968/2012 obtained rank as 788. It is also stated in para 16 that according to the prospectus conditions, the candidates have to choose the "most appropriate response" from the given four options and mark the letter corresponding to the chosen answer and darken the bubble corresponding to that letter in the OMR answer sheet. 30. Vehement arguments have been made by the petitioners praying that this Court may appoint experts to verify the key answers in respect of which the alleged defects have been pointed out. According to them, the cut off date will not deter this Court from examining the matter, especially in the light of the fact that in various cases including the decision of the Apex Court in Kanpur University's case {(1983) 4 SCC 309}, such expert opinion have come up for consideration. 31. Of course, it is true that going by the decisions, the Court cannot act as expert, but it will have to be done by the academic bodies or individual experts in the field and the Court can also direct them to examine. But the question herein is more important in that, even if such a method is adopted, can any directions be issued in the light of the cut off date fixed in the scheme which has to be taken as the law of the land. Learned counsel for the petitioner in W.P.(C) No.11315/2012 Shri Jacob P. Alex submitted that the petitioners can move the Apex Court in that regard seeking for appropriate directions. But, evidently, the issue will have to be considered in the light of the mandatory directions issued by this Court in Madhu Singh's case {(2002) 7 SCC 258}, Mridul Dhar's case {(2005) 2 SCC 65} and Priya Gupta's case (Civil Appeal No.4318/2012). If this Court has to issue a direction to the respondents to appoint experts, follow up action will have to be taken by them which may result in re-arrangement of the ranking in the rank list and in the course of that process, it will affect the candidates who have already got admission, as rightly pointed out by the learned counsel for the respondents. Now, the process of counselling it practically over and the extension granted, as already noticed, is only in respect of seats vacant from All India quota. Many of the candidates including some of the petitioners have joined the course. Options have been submitted by the concerned candidates depending upon the ranking and the availability of seats and all of them have adjusted to the same also. The views taken by the Apex Court in para 8 of the decision in Manish Ujwal's case {(2005) 13 SCC 744}, is therefore quite important, as admissions already effected cannot be disturbed. Therefore, if fresh evaluation is done and the entire scenario is sought to be changed, that will affect the student community and will normally result in delaying the starting of the course itself. Such a contingency cannot be accepted at all. 32. The directions issued by the Apex Court Court in Madhu Singh's case {(2002) 7 SCC 258}, Mridul Dhar's case {(2005) 2 SCC 65} and Priya Gupta's case (Civil Appeal No.4318/2012) are binding on this Court, the institutions, the official respondents and the authorities of the colleges concerned. No admission can be granted after 31.5.2012. Therefore, the plea of the petitioners otherwise cannot be accepted. Of course, learned counsel for the petitioners explained that there had not been any delay on their part in approaching this Court and filing the writ petitions. Even though learned counsel for the petitioners in W.P.(C) No.11315/2012 complained that the direction issued by this Court in the interim order dated 15.5.2012 to respondents to 3 and 4 to file a statement before 30.5.2012 regarding the specific mistakes pointed out by the petitioners have not been complied with, in the light of the stand in the counter affidavit filed by the third respondent and the stand taken by the Medical Council of India, it can be seen that respondents 2 and 3 cannot be found fault with in that regard, since the experts in the field alone will be able to give an answer in the matter. Therefore, the complaint regarding non compliance of the interim order cannot be sustained. 33. This Court, therefore, will not be justified in reopening the entire matter at this stage, as the directions issued by the Apex Court are binding on everybody. The rank list was once revised and finalised in the light of the direction issued by a Division Bench of this Court in Vinod's case (2012 (2) KLT 683). 34. Even in the case wherein the delay has been condoned by the Apex Court ( Manas Ranjan Behera's case - {(2010) 1 SCC 173}), it was clarified that the time schedule prescribed should be followed strictly. 35. Therefore, it is clear that this Court will not be justified in issuing the direction as sought for by the petitioners in the writ petition, as the cut off date is already over. There are various other contentions raised by both sides. The respondents have submitted that any of the candidates who got admission and included in the rank list, have not been impleaded and the petitioners have answered the same otherwise and in fact the petitioner in W.P.(C) No.11315/2012 has filed an application to furnish the details, to implead them. In the light of the view taken by me already with respect to the importance of the cut off date, I need not go into such questions, as no relief can be granted to the petitioners at this stage. 36. Arguments have been raised on the merits of the matter also to an extent, by both sides with regard to the correctness or otherwise of the answer keys. The petitioners allege that the textbooks and authorities relied upon by them will show that some of the answer keys are not correct whereas learned counsel for the respondents pointed out, by relying upon other textbooks that the same is not the position. But this Court, obviously, cannot venture into such an exercise herein and therefore I am not going into the merits of the said contentions also. 37. Before parting with the matter, this Court is of the view that effective steps will have to be taken by respondents 1 and 2 from next year onwards, so that the candidates can be given appropriate opportunity to submit objections to the key answers before valuation is completed. Further, the same will provide for a remedy to such candidates and will avoid like controversies. Enabling clauses can be provided either in the prospectus or by issuing separate orders in that regard. Respondents 1 and 2 will therefore take effective steps in the matter. In view of the above, the writ petitions are dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/ |
