(2012) 259 KLR 884 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL MONDAY, THE 9TH DAY OF JULY 2012/18TH ASHADHA 1934 WP(C).No. 13239 of 2012 (D) --------------------------------------------------- PETITIONER(S): ---------------------- DR.ASHWINI NAVEEN G, AGED 31 YEARS, S/O.GANGADHARAN, PAINI VEEDU, ATTAKKAD PALACHIKKARA P.O, PARAPPA, KASARGOD. BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENT(S): ------------------------ 1. MEMBER SECRETARY, ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES RAM MOHAN PALACE, OLD HIGH COURT BUILDING ERNAKULAM, ,KOCHI 682 031. 2. KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT ASSOCIATION REPRESENTED BY SECRETARY, MALABAR MEDICAL COLLEGE CAMPUS, MODAKKALLUR P.O ATHOLI, CALICUT 673 315. 3. DR.SOMERWELL MEMORIAL CSI (CHURCH OF SOUTH INDIA) MEDICAL COLLEGE, (HEREINAFTER CALLED DR.S.M.C.S.I MEDICAL COLLEGE) KARAKONAM THIRUVANANTHAPURAM, 695 504 REPRESENTED BY DIRECTOR. 4. THE PRINCIPAL DR.S.M.C.S.I MEDICAL COLLEGE, KARAKONAM THIRUVANANTHAPURAM 695 504. ADDL. 5: THE GOVT. OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH & FAMILY WELFARE, TRIVANDRUM. (ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED 8.6.2012. ADDL. R6: MEDICAL COUNCIL OF INDIA, POCKET 14, SECTOR 8, DWARAKA PHASE - 1, NEW DELHI - 110 077, REPRESENTED BY CHAIRMAN. ADDL.7: ABHILASH BALSALAM BASANTHAN, FIRST YEAR POST GRADUATION (GENERAL SURGERTY) STUDENT, DR. SOMERWELL MEMORIAL C.S.I. (CHURCH OF SOUTH INDIA) MEDICAL COLLEGE, KARAKONAM, THIRUVANANTHAPURAM - 695 504. (ADDL. R6 IS IMPLEADED AS PER ORDER IN IA.NO.7734/12 DATED 15.6.2012). (ADDL. R7 IS IMPLEADED AS PER ORDER IN IA.NO.7734/2012 DATED 09.7.2012). R1 & ADDL. R5 BY GOVERNMENT PLEADER SHRI ROSHAN D. ALEXANDER. R2 BY ADV. SHRI BABU KARUKAPADATH BY ADV. SMT. M. A. VAHEEDA BABU BY ADV. SHRI JAGAN GEORGE BY ADV. SHRI K. A. NOUSHAD BY ADV. SHRI P.G. PRAMODE. R3 & R4 BY ADV. SHRI R. T. PRADEEPH. BY ADV. SHRI P. BIJIMON ADDL.R6 BY ALEXANDER THOMAS, SC, MCI. ADDL. R7 BY ADV. SHRI KURIAN GEORGE KANNANTHANAM (SR) BY ADV. SHRI TONY GEORGE KANNANTHANAM BY ADV. SHRI JIJI THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S) EXHIBITS
RESPONDENTS' EXHIBITS:
//TRUE COPY// PS TO JUDGE K. M. JOSEPH & K. HARILAL, JJ. --------------------------------------------- W.P.(C). NO.13239 OF 2012 D ---------------------------------------------- Dated this the 9th July, 2012 Head Note:- Education - Medical - Post Graduation Course - Master of Science in General Surgery - A religious minority is entitled to admit students belonging to its community on the basis of the inter se merit obtained by the students of that community. Education - Medical - Post Graduation Course - Master of Science in General Surgery - Any grant of relief by way of directing the admission to be given would be in transgression of the time limit which has been fixed by the Apex Court. J U D G M E N T K.M. Joseph, J. Petitioner has approached this Court seeking the following reliefs: "i. Issue a writ of mandamus or any other appropriate, writ, order or direction directing the 3rd respondent to admit the petitioner in the Course of Master of Science (General Surgery). ii. Issue a writ of mandamus or any other appropriate writ, order or direction to the 1st respondent to direct the 3rd respondent to give admission to the petitioner forthwith. iii. Issue a declaration declaring that the admission of the 7th respondent is illegal and void. iv. Issue a declaration declaring that the petitioner is the right candidate for admission on the basis of the rank list as well as the allotment by the Kerala Private Medical College Management Association since the petitioner is entitled for the admission as on 31st May, 2012. v. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to consider Ext.P7 within the time frame fixed by this Court." 2. Briefly put, the case of the petitioner is as follows: Petitioner applied for admission to the Post Graduation Course (Master of Science) in General Surgery in the Medical Colleges under the Kerala Private Medical College Management Association (hereinafter called the Association). Ext.P1 is the application. There are four Medical Colleges having Post Graduation Course and they are members of the Association. They include the third respondent College. Petitioner applied for the Post Graduation Entrance Examination on 7.4.2012 and the Examination was scheduled to be held on 25.4.2012. The Association postponed the Examination. Ext.P2 is the Admission Card. The results were put up on the website on 30.5.2012. Petitioner was ranked No.5. Ext.P3 is the rank list published by the Controller of Examination of Kerala University of Health Science. The Association conducted an online option registration and allotment. Ext.P4 is the notification. Petitioner gave option first for Master of Science in General Surgery at the Muslim Educational Society Medical College (which is one of the members of the Association) and the second option for M.S. General Surgery at the third respondent College. He was allotted M.S. General Surgery at the third respondent College and the Association directed him to join the Course on 31.5.2012 itself before 5 PM. Petitioner reached the College with all the documents and tuition fees within time, but the third respondent did not admit the petitioner. On enquiry, the third respondent informed that the seat is reserved for their community. The Joint Director and the Principal of third respondent asked the petitioner to meet other members of the Management. They informed the petitioner that they are conducting a meeting and will take a decision on 1.6.2012. Petitioner filed a complaint to the Association and is before us. 3. Counter Affidavit is filed by respondents 3 and 4 who are the College and the Principal of the College respectively. It is, inter alia, stated therein as follows: The third respondent College is a minority institution of Christians belonging to the South Kerala Diocese of Church of South India and is accorded with minority status vide Ext.R4(a). The religious denomination is comprised of socially and educationally backward classes and scheduled castes and scheduled tribes, professing Christianity. The college is earmarked with nine seats in various disciplines out of fifteen seats as management quota and the remaining six seats are to be filled up by Government from the list of candidates by the Commissioner for Entrance Examinations. Ext.R4(b) purports to be the copy of the distribution of seats. The Governing Body of the College met on 11.04.2012 under the auspices of the Bishop of the denomination, who is the Chairman of the Board, and decided to fill up 35% of the management quota from among candidates who get qualified through the entrance examination and belonging to the denomination in exercise of minority right. Other candidates are preferred only in the absence of denominational candidates. The decision of the Board was forwarded to the College as well as to the second respondent which is the Association. The lone candidate belonging to the denomination who got qualified in the entrance examination for management quota was one Dr. Abhilash Balsalam Vasanthan. He exercised his first option to M.S. (General Surgery) in the third respondent College to avail minority privilege. Ext.R4(d) is a letter issued by the Bishop to the fourth respondent to give admission to Dr. Abhilash Balsalam Vasanthan. Accordingly, he was admitted to MS (General Surgery) in the Forenoon on 31.5.2012 after complying with all formalities. He had produced the original transfer certificate, certificate of degree of Bachelor of Medicine and Surgery, certificate of compulsory rotating resident internship, certificate of permanent registration and had also remitted the tuition fee. Exts.R4(e) is produced as the transfer certificate, Ext.R4(f) the certificate of degree of bachelor of medicine and surgery, Ext.R4(g) the certificate of compulsory rotating resident internship, Ext.R4(h) the certificate of permanent registration and Ext.R4(i) is the receipt for remittance of tuition fees. Dr. Abhilash started the Course from 01.06.2012 onwards and he was posted in the Department of Surgery from that day onwards. It is also stated that the allotment of the petitioner by itself would not confer him with an indefeasible right to get admission by stealing a march over the right of minority granted by the Constitution and reiterated in the decisions in T.M.A. Pai, P. A. Inamdar and Islamic Academy of Education's cases. 4. The second respondent Association also has filed a Counter Affidavit. Therein, they have set up a case that as per the available option entertained by the petitioner, the petitioner was allotted M. S. General Surgery in the third respondent College. 5. We heard the learned counsel for the petitioner, learned counsel for the third respondent, the learned senior counsel appearing for the seventh respondent (the candidate who was admitted by the third respondent College as referred to in the Counter Affidavit), the learned counsel appearing on behalf of the Medical Council of India and also the learned counsel appearing for the 2nd respondent Association, besides the learned Government Pleader. 6. The principal argument which is addressed by the learned counsel for the petitioner is that the petitioner was allotted by the second respondent Association to the third respondent College on the basis of the rank which was secured by the petitioner and his option. The prospectus issued by the second respondent Association was made available of which the third respondent is a member. Learned counsel would point out that the prospectus does not show that any reservation for minority community is claimed by the third respondent College. On the other hand, he points out that two colleges, namely MES College and Kannur Medical College, which claimed minority status and also hundred per cent reservation. Therefore, he would submit that the claim made by the third respondent College that they are entitled to admit a student belonging to the minority community of lesser merit, is not sustainable. The point raised is apparently that having issued a prospectus, it may not be open to the third respondent to deny admission to the petitioner who exercised his choice for getting admission in the College in accordance with his rank secured by him and what is more, he was allotted to the College by the Association of which the third respondent is a constituent member and, therefore, it cannot open to them to turn round and resile from the position which is held out by them through the prospectus to the outside world, that no reservation on the basis of minority right is proposed in regard to the third respondent College. 7. In reply to the said contention, the learned counsel for the third respondent College would submit that undoubtedly the third respondent is a College having minority status as claimed in Ext.R4(a). Still further more, the Governing Council did decide to reserve 35% of the seats for the members of the minority community. He would further expatiate and submit that there are a total of fifteen seats available in the Post Graduation Segment. The College as also the other members of the Association have entered into seat sharing agreement with the Government and six seats are set apart to be filled up from the list prepared by the Commissioner of Entrance Examination of the State and nine seats are reserved to be filled as management seats. Fifteen per cent of the total is set apart for NRI. 8. As far as the candidates actually admitted by the third respondent College are concerned, it is pointed out that there was a lone candidate available from the denomination which is running the College. Therefore, he was selected as he was the only candidate (the additional 7th respondent) available from the various denominations which are running the third respondent College. The right of the minority is well established in the decision of the Apex Court, it is pointed out. The Apex Court in Islamic Academy of Education v. State of Karnataka ((2003) 6 SCC 697) has, inter alia, stated as follows: "15. It must be clarified that minority professional colleges can admit, in their management quota, a student of their own community/language in preference to a student of another community even though that other student is more meritorious. However, whilst selecting/admitting students of their community/language, the inter se merit of those students cannot be ignored. In other words, whilst selecting/admitting students of their own community/language, they cannot ignore the inter se merit amongst students of their community/language. Admission, even of members of their community/language, must strictly be on the basis of merit except that in case of their own students it has to be merit inter se those students only. Further, if the seats cannot be filled up from members of their community/language, then the other students can be admitted only on the basis of merit based on a common entrance test conducted by government agencies." Therefore, even though the petitioner actually had secured a higher rank than the admitted candidate, in view of the law declared by the Apex Court, the third respondent was justified in giving admission to the seventh respondent who is the only member of the religious denomination. He submits that the additional respondent (7th respondent) is the only person from the religious denomination which runs the college and who had passed the test. He would also submit that the College will lose the minority status, if admission is not given to that student. 9. Learned senior counsel for the additional 7th respondent, (the student admitted by the third respondent) would submit that he was admitted in the minority quota. He would further submit that there is another insuperable obstacle to the petitioner to get relief in the matter. He would point out that since the dead line of 31.5.2012 has been crossed, no relief as claimed by the petitioner can be granted. 10. Learned counsel appearing on behalf of the 6th respondent Medical Council of India submitted that whatever may be the decision on the merit of the claim, the Court cannot grant relief, directing admission for this year, in view of the expiry of the outer time limit, namely 31.5.2012, in view of the decisions of the Apex Court. He relied on the decisions of the Apex Court in Civil Appeal No.4319/12 (Priya Gupta v. State of Chhattisgarh & Ors.) and Mridul Dhar (Minor) And Another v. Union of India And Others (2005 (2) SCC 65). He would submit that in some cases, though the Apex Court after finding merit in the contention of the petitioner, directed admission to be given to the candidate for the next year as against an approved seat. But, he would submit that there can be no question of directing admission to be given this year. 11. Learned counsel for the second respondent Association would submit that they published the prospectus and made allotment on the basis of the prospectus and the fact that the third respondent College is a minority institution, was also included in the prospectus. 12. Two questions arise. Firstly, as against the column in the prospectus issued by the second respondent Association "per centage of seats reserved for the management community", it is left blank as against the third respondent, while it is shown as hundred per cent in respect of another College, which is also a minority institution. The said College, which is MES Medical College, claimed hundred per cent reservation, while the status of the institution is shown as Muslim minority. There is yet another College, namely the Kannur Medical College and as far as the said College is concerned, hundred per cent reservation is claimed. 13. As far as the third respondent College is concerned, as against the status of the institution as minority, no doubt, the third respondent is shown as a religious minority. But, as already noted, there is nothing stated as against the column "per centage of seats reserved for the management community". It may also be noted that in respect of the other two institutions claiming minority status forming constituent members of the Association, at the bottom of the respective column, it is stated that if sufficient number of candidates are not available for the seats reserved for the management community, candidates from the general category will be considered. 14. It would appear that the petitioner had given the first choice as MES Medical College and the second choice was indicated in respect of the seat in the third respondent College. No doubt, on the one hand, there is a principle that the prospectus speaks the mind of the person who either makes appointments or makes admissions and therefore one cannot resile from the position obtaining in the terms of the prospectus. In this case, the third respondent was being shown as belonging to a religious minority. A religious minority is entitled to admit students belonging to its community, no doubt, on the basis of the inter se merit obtained by the students of that community, as held by the Apex Court. However, even if there is a more meritorious candidate belonging to another community, the right of the minority community to admit student of its community having lesser marks is beyond challenge, in view of what is stated by the Apex Court in Islamic's case (supra). We cannot also totally overlook the fact that Article 30 confers a fundamental right. We cannot overlook that admittedly the candidate appointed in preference to the petitioner, is a member of the religious denomination. In fact, it was pointed out that he is the only qualified candidate. He was also one of the candidates who wrote the Examination and is in the rank list published by the second respondent Association. No doubt, he was not allotted to the third respondent College, but he was allotted to some other College. 15. There is another contention raised by the learned counsel for the petitioner that another member of the religious minority has been admitted in this College. This was revealed when in a connected matter, the second respondent Association filed an Affidavit. When it is pointed out to the counsel for the third respondent, he obtained instructions and submitted that the said candidate belonged to the Latin Catholic community which community is not part of the religious denomination which runs the College, even though it is true that Latin Catholic is also a member of the Christian denomination. It would also appear that even if two candidates are appointed, it would be well within the thirtyfive per cent reservation which the minority institution has exercised its right in respect of. 16. It is true that the prospectus is wanting, in that there is no mention of any per centage of seats which are reserved for the third respondent College. At the same time, we also cannot overlook the fact that it is stated in the prospectus that it is a religious minority. There is a decision taken by the Governing Council to reserve thirtyfive per cent seats. It would appear that it was taken on 11.4.2012. The prospectus was published on 31.3.2012. According to the Counter Affidavit, the said communication was sent to the second respondent Association. We cannot entirely brush aside the complaint of the petitioner as totally without any merit at all. But, at the same time, we cannot overlook the constitutional guarantees which are given to the religious minority to admit students of their choice. 17. In this case, we must also bear in mind the principle which has been declared by the Apex court consistently as pointed out by the learned counsel for the Medical Council of India that admissions cannot be ordered to be made after 31.5.2012 in respect of Post Graduation Medical Courses. Decisions have been brought to our notice in this regard. One of the dimensions which is pressed before us is that is an admission is found to be palpably illegal, is the Court helpless in the matter of directing admissions to be made. We are pointed out one decision of the Apex Court where pointedly the Court dealt with a case where the High Court of Orissa has directed admissions to be made after the cut off date (Medical Council of India v. Manas Ranjan Behera And Others) (2010 (1) SCC 173). Therein, the Apex Court has held as follows: "1. Leave granted. The Medical Council of India has challenged the order passed by the Division Bench of the High Court of Orissa directing the admission of twelve students after the cut-off of 30th September of the year concerned. 2. It may be noticed in Mridul Dhar v. Union of India, 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." In view of these directions, the High Court should not have passed the impugned order. 3. However, we have noticed that these twelve students were eligible and because of unprecedented situation, they could not secure admission within the prescribed time-limit. We condone the delay in giving admission to them as a one-time measure. However, we clarify that the time schedule prescribed by this Court should be followed strictly. 4. The appeals are disposed of accordingly." 18. No doubt, in Priya Gupta's case (supra), the apex Court issued directions and in fact the Court had categorically held that Contempt of Court Proceedings will be taken. Learned counsel for the petitioner points out that Courts are not included within paragraph A. We would think that the said argument may not hold good for the mere reason that Courts are not specifically mentioned. We may further notice the following paragraph contained in Priya Gupta's case, which was brought to our notice by the learned counsel for the Medical Council of India which reads as follows : "With all the humility at our command, we request the High Courts to ensure strict adherence to the prescribed time schedule, process of selection and to the rule of merit." It may be true that in some of the cases, the Apex Court had directed admissions to be made in the next year. 19. The upshot of the above discussions is as follows: We are certainly not unmindful of the complaint of the petitioner about the lacuna in the prospectus. We would even go to hold that it was highly irregular. We may also consider that as against the column "per centage of seats reserved for the management community", it is left blank. But, when we take into consideration the fact that this is a case where a religious minority has admitted a candidate and that too, the only qualified candidate in the seat in preference to the petitioner, we would think that it cannot be characterized as being palpably illegal. We would also think that any grant of relief to the petitioner by way of directing the admission to be given to him, would be in transgression of the time limit which has been fixed by the Apex Court in a number of decisions. In such circumstances, we feel that no relief can be granted to the petitioner and accordingly, the Writ Petition will stand dismissed. Sd/= K. M. JOSEPH, JUDGE Sd/= K. HARILAL, JUDGE kbk. //True Copy// PS to Judge |
