Research › Search › Judgment

Kerala High Court · body

2004 DIGILAW 35 (KER)

State of Kerala v. Dr. Riya Muhammed

2004-01-27

CYRIAC JOSEPH, K.PADMANABHAN NAIR

body2004
Judgment :- Cyriac Joseph, J. 1. This writ appeal arises from O.P. No. 13704 of 2003 which was allowed by the learned Single Judge on 26-9-2003 as per the judgment impugned in this appeal. The appellants are the respondents in the Original petition and the respondents herein are the petitioners in the Original Petition. 2. The dispute in this case relates to admission to Post Graduate Degree Courses in Homeopathy (M.D. Homoeo) for the year 2000-2001. A copy of the Prospectus for admission to Post Graduate Degree Courses in Homoeopathy (M.D. Homoeo) for the year 2000-2001 is Ext.P1. According to Clause 7 of the Prospectus, admission to the P.G. Course shall be made on the basis of merit in the Entrance Examination conducted by the Commissioner for Entrance Examinations, Government of Kerala. However, admission to the seats reserved for the teachers of the Private Homeopathic Medical Colleges in Kerala will be made on the basis of seniority among the concerned and there will not be any Entrance Examination for the purpose. According to Clause 8 of the Prospectus, on the basis of the performance in the Entrance Examination, the Commissioner for Entrance Examination will prepare and publish a Rank List of Common General Merit, a Select List and a Wait List on the basis of seats allotted to each category. These lists will be sent to the Chairman and Convenor of the Selection Committee. The Selection Committee will make the necessary allotment of candidates and its decision will be final and binding to all candidates. The Select List shall be valid only for three months from the date of publication. The validity period will be extended by the Government of Kerala if necessary. Additional seats if sanctioned with the approval of the Central Council of Homeopathy during the validity period of the selection list shall be filled up from it. No individual memo shall be issued. The candidates selected for interview shall be informed through print and electric media. According to Clause 9, selection and allotment of seats to the candidates from the rank list will be made through personal appearance. For personal appearance the candidates will be called in batches in the order of rank obtained at the Entrance Examination and selection will be made according to the availability of seats for the subject. According to Clause 9, selection and allotment of seats to the candidates from the rank list will be made through personal appearance. For personal appearance the candidates will be called in batches in the order of rank obtained at the Entrance Examination and selection will be made according to the availability of seats for the subject. According to Clause 12, failure to turn up for interview at the appointed time and date will result in forfeiture of their chance. 3. The writ petitioners (respondents herein) are holders of B.H.M.S. Degree. They applied for admission to Post Graduate Degree Courses in Homoeopathy (M.D. Homoeo) for the year 2000-2001 in the Kerala General Merit category. They appeared in the Entrance Examination and obtained Rank Nos. 30,37,42 and 49 respectively in the rank list published on the basis of the performance in the Entrance Examination. The said rank list was published in May 2002. The total number of seats then available was 24. Hence candidates who obtained rank Nos. 1 to 50 were called for interview to be held on 27-11-2002 at Government Homoepathic Medical College, Thiruvananthapuram. The candidates were directed to produce at the time of interview the admission card/hall ticket for the Entrance Examination and the originals of the certificates mentioned in the Prospectus. Though the interview was held on 27-11-2002 as notified, the writ petitioners did not turn up for the interview. Since two seats out of the 24 seats were reserved for teachers working in Private Homeopathic Medical Colleges, 22 candidates were selected from among the candidates who appeared for the interview. Six candidates were included in the Wait List. 4. Later the number of seats was raised to 36 by sanctioning 12 additional seats. The Government directed the Chairman and Convenor of the Selection Committee to fill up 6 of the 12 additional seats from the Wait List already prepared on the basis of the interview conducted on 27-11-2002 and the remaining 6 seats by conducting a fresh interview among candidates who obtained ranks after 50 in the rank list prepares on the basis of the performance in the Entrance Examination. The validity of the Select List and the Wait List was extended for a further period of three months from 27-2-2003. Accordingly, the candidates who obtained rank Nos.51 to 75 in the general category were called for the interview on 29-4-2003. The validity of the Select List and the Wait List was extended for a further period of three months from 27-2-2003. Accordingly, the candidates who obtained rank Nos.51 to 75 in the general category were called for the interview on 29-4-2003. The writ petitioners were not called for the interview on 29-4-2003 on the ground that their chance for admission stood forfeited on account of their failure to turn up for the interview on 27-11-2002. 5. When the writ petitioners came to know that they were not called for the interview on 29-4-2003 and that only rank numbers 51 to 75 were called for interview, they filed O.P. No. 13704 of 2003 praying for a direction to the respondents in the Writ Petition to give admission to them in the additional seats. They also prayed for declaration that they were entitled to be considered for admission to the additional seats according to their rank in the rank list published based on the performance in the Entrance Examination. The third respondent in the Writ Petition filed a counter affidavit contending that the writ petitioners were not entitled to be called for the interview on 29-4-2003 and that they were not entitled to be considered for admission in the additional seats since their chance for admission stood forfeited in terms of Clause 12 of the Prospectus on account of their failure to turn up for the interview held on 27-11-2002. The third respondent denied the allegation of the writ petitioners that they also had appeared in the office of the third respondent on 27-11-2002 but were asked to return. The third respondent categorically stated that the writ petitioners had not turned up for the interview on 27-11-2002 and also produced as Ext.R3(a), photo copy of the details of the candidates presented for the interview on 27-11-2002. Ext.R3(a) contained the names and signatures of the candidates who appeared for the interview. The names or signatures of the writ petitioners did not appear in Ext.R3(a). 6. In the impugned judgment, the learned Single Judge did not go into the question whether the writ petitioners had in fact participated in the interview held on 27-11-2002. However, the learned Single Judge observed that since the ranks of the petitioners were below 30, there was justification for their non-participation in the interview as there was no scope for getting admission in the 24 seats then available. However, the learned Single Judge observed that since the ranks of the petitioners were below 30, there was justification for their non-participation in the interview as there was no scope for getting admission in the 24 seats then available. According to the learned Single Judge, when the number of seats were subsequently increased from 24 to 36, selection for the additional seats had to be made on the basis of the ranking in the rank list prepared based on the performance in the Entrance Examination. The learned Single Judge held that the third respondent was bound to offer admission to the writ petitioners based on their rank obtained by them in the Entrance Examination. It was further held that even if the petitioners had not appeared for the interview held on 27-11-2002, they were entitled to be called for interview on 29-4-2003 as interview was only an offer to give admission in the available seats. Hence, the learned Single Judge directed the third respondent to reconsider the admission of the writ petitioners based on their rank in the Entrance Examination and to give them admission within two weeks from the date of production of a copy of the judgment. Learned Single Judge further clarified that since the irregularity in the process of admission was purely on account of the mistake or illegal action of the third respondent, the petitioners should not be denied the right to participate in the examination on account of any shortage of attendance on account of the delayed joined of the course. Learned Single Judge further directed that if it was possible, the petitioners should be given admission without affecting those who had jointed the course and continued studies for four months, by increasing the number of seats to accommodate them. 7. The respondents in the writ petition have filed this writ appeal contending that the learned Single Judge erred in holding that the writ petitioners (respondents herein) were entitled to be called for the interview on 29-4-2003 even though they had not appeared for the interview held on 27-11-2002. According to the appellants, the right of the respondents for admission to the course stood forfeited in terms of Clause 12 of Ext.P1 Prospectus on account of their failure to turn up for the interview on 27-11-2002. According to the appellants, the right of the respondents for admission to the course stood forfeited in terms of Clause 12 of Ext.P1 Prospectus on account of their failure to turn up for the interview on 27-11-2002. It is also contended that the learned Single Judge ought to have seen that the appellants can admit students only in the sanctioned seats and that they cannot admit students above the sanctioned strength. It is further contended by the appellants that for the sake of granting admission to the respondents or for accommodating those who have already joined the course but are likely to be ousted by the admission of the respondents, it is not possible to increase the number of seats. According to the appellants, the third respondent cannot admit students above the sanctioned strength without permission from the Government, the University and the Central Council of Homoeopathy. Neither the University nor the Central Council of Homoeopathy was party to the writ petition. The appellants are also aggrieved by the direction to permit the respondents to participate in the Examination even if there is shortage of attendance. It is stated that the appellants have no power to condone the shortage of attendance and that only the University has the power to condone the shortage of attendance as per the Rules. 8. Against the above background, the first question to be considered in this appeal is whether the respondents had turned up for the interview held on 27-11-2002. In this regard the averment in the writ Petition is as follows: “…According the petitioners had also appeared in the office of the 3rd respondent since their rank numbers are below 50. Accordingly the first 24 persons were given admission to the course. The petitioners were asked to return”. The above averment was categorically denied in the counter affidavit filed by the third respondent in the Writ Petition (third appellant herein), the Chairman and Convenor of the Selection Committee. According to the averments in the said counter affidavit, the writ petitioners did not attend the interview held on 27-11-2002. To support the above contention, Ext.R3(a) was produced along with the counter affidavit. Ext.R3(a) contained the names and signatures of the candidates who presented for the interview on 27-11-2002. The names and signatures of the writ petitioners did not appear in Ext.R3(a). To support the above contention, Ext.R3(a) was produced along with the counter affidavit. Ext.R3(a) contained the names and signatures of the candidates who presented for the interview on 27-11-2002. The names and signatures of the writ petitioners did not appear in Ext.R3(a). The writ petitioners did not file any reply to the counter affidavit filed by the third respondent. Nor did they place on record any material to prove their claim that they had appeared in the office of the third respondent for the interview held on 27-11-2002. In such circumstances, we have no valid or sufficient reason to disbelieve the statement in the affidavit of the third respondent who is the Principal of the Government Homoepathic Medical College and also the Chairman and Convenor of the Selection Committee. Hence we hold that the writ petitioners had not turned up for the interview held on 27-11-2002. 9. The next question is whether the right of the writ petitioners for admission to the course stood forfeited on account for admission to the course stood forfeited on account of their failure to turn up for the interview on 27-11-2002. According to Clause 12 of Ext.P1 Prospectus, the failure to turn up for interview at the appointed time and date will result in forfeiture of their chance. The “interview” mentioned in Clause 12 is the “personal appearance” mentioned in Clause 9 of the Prospectus wherein it is stated that selection and allotment of seats to the candidates from the rank list shall be made through personal appearance and that for personal appearance the candidates will be called in batches in the order of rank obtained at the Entrance Examination and selection will be made according to availability of seats for the subject. Admittedly, Rank Nos.1 to 50 were called for the interview on 27-11-2002. The writ petitioners who obtained rank Nos. 30,37,42 and 49 were entitled to appear for the interview held on 27-11-2002, They have no case that they were not aware of the interview scheduled to be held on 27-11-2002. On the other hand, their case is that they also had appeared in the office of the third respondent and they were asked to return. The Writ petitioners were aware of Clause 12 of the Prospectus and the consequence of their failure to turn up for the interview. On the other hand, their case is that they also had appeared in the office of the third respondent and they were asked to return. The Writ petitioners were aware of Clause 12 of the Prospectus and the consequence of their failure to turn up for the interview. In spite of being aware of Clause 12 of the Prospectus and the interview scheduled to be held on 27-11-2002, the Writ Petitioners did not turn up for the interview. Hence by operation of Clause 12 of the prospectus, the right of the petitioners for admission stood forfeited on account of their failure to turn up for the interview held on 27-11-2002. 10. The next question is whether the writ petitioners were entitled to be called for the interview on 2-4-2003 since the said interview was for admission of students in the additionally sanctioned seats. The learned Single Judge has proceeded on the assumption that the position is completely different when the interview is for admission of students in the additionally sanctioned seats. We do not agree with the above view of the learned Single Judge. According to Clause 8 of the Prospectus, the additional seats sanctioned during the validity of the period of the select list also shall be filled up from it. If Clause 12 is strictly construed a candidate who failed to turn up for the interview held for admission to the originally sanctioned seats has no right to be called for the interview for admission to the additionally sanctioned seats. In our view Clause 12 should be strictly construed because unless the provisions in a Prospectus are strictly construed there will be possibility of misinterpretation and manipulation depending on the whims and fancies of the persons concerned. Moreover, it is not unjust or unfair or unreasonable to say that the person who was not interested in taking admission in one of the originally sanctioned seats need not be given another chance when admissions are made to the additional seats sanctioned later. It is to be noted that on 27-11-2002, 22 candidates were admitted in the Kerala General Merit category and a Wait List of six candidates was prepared. The six candidates included in the said Wait List were admitted in six of the 12 additionally sanctioned seats. On 29-4-2003 admissions were made only to the remaining six seats. It is to be noted that on 27-11-2002, 22 candidates were admitted in the Kerala General Merit category and a Wait List of six candidates was prepared. The six candidates included in the said Wait List were admitted in six of the 12 additionally sanctioned seats. On 29-4-2003 admissions were made only to the remaining six seats. Had the writ petitioners appeared for the interview on 27-11-2002, they also would have been included in the Wait List and consequently they would have been considered for admission to the additionally sanctioned seats. Having chosen not to appear for the interview on 27-11-2002 and having lost the opportunity to be included in the Wait List prepared on 27-11-2002, the writ petitioners cannot have any legitimate grievance about the denial of opportunity to appear in the interview held on 29-4-2003 in view of the forfeiture of their chance in terms of Clause 12 of the Prospectus. Therefore, we hold that the writ petitioners were not entitled to be called for the interview held on 29-4-2003. 11. We cannot agree with the view of the learned Single Judge that there was irregularity in the process of admission and that the irregularity in the process of admission and that the irregularity was purely on account of the mistake or illegal action of the third respondent and that the petitioners shall not be denied the right to participate in the examination on account of shortage of attendance on account of delayed joining of the course. In the light of the discussion in the earlier paragraphs, we are of the view that there was no irregularity in the process of admission and that there was no mistake or illegal action on the part of the third respondent. The learned Single Judge was not right or justified in directing that the writ petitioners shall be allowed to participate in the examination even if there is shortage of attendance on account of the delayed joining of the course. Such a direction was given ignoring the rules regarding attendance and without hearing the authorities conducting the examination. If there is any shortage of attendance, the authority competent to condone such shortage as per the rules is the University. The University was not a party to the Writ Petition. Further, the shortage of attendance was not an issue in the Writ Petition. If there is any shortage of attendance, the authority competent to condone such shortage as per the rules is the University. The University was not a party to the Writ Petition. Further, the shortage of attendance was not an issue in the Writ Petition. If at all the petitioners are admitted to the course and if there is any shortage of attendance they will have to apply to the competent authority for condoning the shortage of attendance in accordance with the rules. In our view, the above mentioned direction of the learned Single Judge is beyond the scope of the Writ petition and also without jurisdiction. 12. We also do not find any justification for directing the respondents to increase the number of seats to accommodate or the candidates who will lose admission on account of the admission of the petitioners. In the normal course, the court should confine itself to the adjudication of the issue raised in the Writ Petition and the declaration of the rights of the parties to the Writ Petition. If the petitioners establish their enforceable right claimed in the writ petition, they may be granted the relief claimed and the consequences should follow. But if relief cannot be granted to the petitioners without affecting the rights of other persons, naturally such persons will have to be heard before granting the relief. Instead a direction cannot be issued in increase the number of seats to accommodate everybody. It is not a desirable solution because increasing the number of seats has several administrative, procedural and financial implications. Hence, in a given case, if relief can be granted to the writ petitioners let it be granted and if it cannot be granted let it not be granted. The Government cannot be compelled to create more seats to accommodate all the competing candidates. In this case we do not find any valid or special reason to deviate from the above general principle. 13. For the reasons stated above, the writ Appeal deserves to be allowed and the impugned judgment is liable to be set aside. 14. It has been brought to our notice that by an interim order passed on 25-4-2003 in C.M.P.No. 2317/03 in O.p.No.13704 of 2003, the respondents in the writ petition were directed to call the writ petitioners also for the interview to be hold on 29-4-2003 for admission to the additional seats. 14. It has been brought to our notice that by an interim order passed on 25-4-2003 in C.M.P.No. 2317/03 in O.p.No.13704 of 2003, the respondents in the writ petition were directed to call the writ petitioners also for the interview to be hold on 29-4-2003 for admission to the additional seats. It was clarified in the order that the selection shall be subject to further orders of the court. We are informed that in compliance with the said interim order dated 25-4-2003, the writ petitioners also were allowed to appear for the interview held on 29-4-2003. From the averments in the memorandum of writ Appeal it is seen that the first respondent Dr. Riya Muhammed relinquished her claim for admission and respondent No. 2 Dr. Kavitha Thomas and respondent No.3 Dr. Mohammed Muneer were accommodated in the available seats. The 4th respondent Dr. Raby Mathews was provisionally admitted in a vacancy earmarked for teachers working in Private Homoeopathic Medical Colleges in Kerala. It is seen that the teacher who had been selected for the said seat was not qualified at the time of admission as her qualified at the time of admission as her qualifying examination was not approved by the Central Council of Homoeopathy approved the qualifying retrospectively and the said technical defect stood cured. It is not clear whether pursuant to the decision of the Central Council of Homeopathy the said teacher has again claimed admission and whether the provisional admission given to the 4th respondent has been cancelled or not. Learned counsel for the parties were not able to throw any light in the matter. 15. In the above circumstances, the Writ Appeal is allowed and the impugned judgment is set aside. However, considering that the writ petitioners had obtained higher ranks than the ranks obtained by some of the candidates who were admitted in the additional seats, we direct that if they have already been admitted to the course pursuant to the impugned judgment and if they can be retained without ousting any other candidate who has already been admitted, their admission need not be cancelled consequent on the setting aside of the impugned judgment. If their admissions are not thus cancelled, their right to appear in the examination will be governed by the relevant rules in that regard. If their admissions are not thus cancelled, their right to appear in the examination will be governed by the relevant rules in that regard. In other words, if there is any shortage of attendance on account of the delayed admission they will have to approach the competent authority for condonation of the shortage of attendance.