(2012) 261 KLR 000 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934 WP(C).No. 15861 of 2012 (G) --------------------------- PETITIONER(S): ------------- DR. SHYAMA MANOJ, AGED 26 YEARS D/O. T.K. MANOJ KUMAR, RESIDING AT SREEMANGALAM KUNNAMTHANAM, MALLAPPALLY PATHANAMTHITTA DISTRICT-689581. BY ADVS.SRI.T.B.HOOD SMT.M.ISHA RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT SECRETARIAT THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION MEDICAL COLLEGE POST OFFICE THIRUVANANTHAPURAM-695011. 3. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS FIFTH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR THIRUVANANTHAPURAM-695011. 4. THE PRINCIPAL MALANKARA ORTHODOX SYRIAN CHRCH MEDICAL COLLEGE KOLENCHERY, ERNAKULAM DISTRICT-682311. 5. THE MEDICAL COUNCIL OF INDIA POCKET-14, SECTOR-8, DWARAKA PHASE-1 NEW DELHI-110077, REPRESENTED BY ITS SECRETARY. ADDL.6. DR.ANEESH K.V., V.K.BHAVAN, VENNIYOOR, VENGANOOR POST, THIRUVANANTHAPURAM-695 523. (The additional 6th respondent is impleaded as per order dated 13.7.2012 in I.A.No.9357/2012) 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 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-07-2012, 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.15861 OF 2012 G ---------------------------------------------- Dated this the 13th July, 2012 Head Note:- 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. 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: "The Liquidated Damages will not be recovered from students coming from All India Quota to State quota and vice versa, provided the admission relates to the same year and before the final Centralised allotment Process." Learned Government Pleader would impress upon us that the Government has allotted a candidate who had not earlier secured any admission to the vacancy arising from the allotment of the sixth respondent to the fourth respondent College. No doubt, it has not been implemented pursuant to the oral directions given by us. 7. Learned counsel for the petitioner would submit that the petitioner may not be liable to pay damages. He drew our attention to the form of the bond, inter alia. Learned counsel for the Medical Council of India would submit that the petitioner cannot get a direction for being admitted for the reason that it is beyond the time limit prescribed, namely 31.5.2012. According to him, the petitioner will not be entitled to the benefit of the Order passed by the Supreme Court extending the time till 15.7.2012. This is for the reason that all that was intended by the Apex Court was to cover those seats which were surrendered from the All India Quota to be filled up under the State Quota. He would point out that the seats in the private colleges are not taken into consideration for the purpose of All India Quota. It is also noted that this is a seat which was filled up prior to 31.5.2012 (Dr. Hari) and it became vacant on 31.5.2012 and thereafter it remained unfilled till it is purported to be filled up by the Government now. Learned Government Pleader would submit that the action of the Government in allotting the candidate to the fourth respondent College is legal. 8. We are called upon to decide the validity of Ext.P7. On the strength of the rank, the petitioner was called upon to exercise her option by Ext.P3. Her opportunity came on 5.7.2012. She exercised her option for the seat of M. D. in Paediatrics. She is denied her choice only for the reason that she had not surrendered the seat of DCH obtained in the All India Quota before 22.6.2012. Nothing is shown in Ext.P3 which would rob the petitioner of her right to exercise her option in accordance with the inter se rank in the Scheduled Caste List. Quite clearly, the petitioner has higher rank than the additional sixth respondent. Learned Government Pleader, in fact, would only object to the option of the petitioner on the ground that she had not surrendered her seat. In fact, when we asked him as to whether her option would have been accepted if she had surrendered the seat in the All India Quota before 22.6.2012, the learned Government Pleader would say that her option would have been accepted. If that is so, we would have to scan the prospectus. Even in the prospectus, the only Clause relied on in the impugned order is Clause XII. Clause XII reads as follows: "XII. Distribution of un-availed seats under All India Quota: The distribution of seats that are reverted back from the All India Quota will be as per the State allotment policy. The course wise distribution will be decided after these seats are reverted back. The details of distribution for these seats as informed by the DME, will be displayed at the allotment centre." 9. From Clause XII, we are not able to divine as to how it will deprive the petitioner of her right to exercise her option on the strength of her rank. In this context, we must consider the submissions made by the learned counsel for the Medical Council of India also. We put it to the learned counsel for the Medical Council of India as to whether there is any legal embargo in the surrender of the seat secured in the All India Quota after 22.6.2012, leading to the Government of the State filling up the same under the State Quota. He would submit that there can be no legal embargo in the Government of the State filling up the said surrendered seat, even after the surrender after 22.6.2012, but before 15.7.2012. If that is so, if the option of the petitioner had been accepted on 05.7.2012, there was clearly time till 15.7.2012 going by the Orders of the Apex Court. 10. Learned Government Pleader has a different approach. According to him, the matter is concluded by Exts. R2(h) and R2(i) and 22.6.2012 is the cut off date for surrendering seats and Clause XII refers only to reverted seats. 11. We are not shown anything either in the prospectus or in Ext.P3 to hold that merely for the reason that the petitioner did not surrender her seat in the All India Quota before 22.6.2012, she will stand deprived of her right to exercise her option. No doubt, the principal complaint of the Government Pleader is that of lapsing of the seat. There, we have already noticed the submissions of the learned counsel for the Medical Council of India. Learned counsel for petitioner would in fact point out that even now there is time for filling up the vacancy in DCH if the petitioner is relieved. According to the learned Government Pleader, it is a labourious process and it requires sanction of the DGHS. We are of the view that the petitioner cannot be told of the gates for the reason that she did not surrender her seat in the All India Quota. Merit must be the sole criterion generally. Going by the rank, the petitioner is more meritorious than the additional sixth respondent. Nothing is shown in the prospectus or in Ext.P3 to depart from the principle of merit. In such circumstances, we would think that we should interfere with Ext.P7 on the ground that nothing is shown before us in the prospectus or in Ext.P3 to repel the case of the petitioner. As to whether the petitioner will have to pay liquidated damages, is a question which we do not think we should consider. This is for the reason that for giving her relief, we need only find that there is nothing in the prospectus or in Ext.P3 to show that the action in Ext.P7 is justified. 12. Accordingly, the Writ Petition is allowed and we quash Ext.P7 and declare that the denial of admission to the petitioner is illegal. We have recorded the submission of the learned counsel for the Medical Council of India which would tend to show that it will be open to the Government to fill up the seat under the All India Quota, even if it is surrendered after 22.6.2012, necessarily before 15.7.2012. Sd/= K. M. JOSEPH, JUDGE Sd/= K. HARILAL, JUDGE kbk. //True Copy// PS to Judge |
