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2012 DIGILAW 734 (KER)

G. L. Praveen v. Secretary

2012-08-02

K.HARILAL, K.M.JOSEPH

body2012
JUDGMENT :- K.M. Joseph, J. 1. The petitioner participated in the entrance examination held by the Kerala Private Medical College Management Association. The third respondent is the Controller of Examination of the Association. The petitioner was ranked first in the entrance examination. He exercised his option for M.D. in Radio Diagnosis. He was allotted to the college of which the 4th respondent is the Director and the 5th respondent is the Principal. It is the case of the petitioner that he got allotment memo as per Ext.P5 dated 31/5/2012 and that he went to the college on 31/5/2012. But he could not produce the original certificates (Transfer Certificate and Mark List) as the same had been already given to the Pushpagiri medical College, Thiruvalla in which college he was selected for a Diploma Course. According to him, he filed Ext.P6 before the authorities of the respondent-College undertaking that the originals will be produced within three days. Going by the version in the amended writ, the 6th respondent had been admitted in the place of the petitioner, who is having lower marks. The petitioner, accordingly has approached this Court seeking the following reliefs. i. Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents not to allot the seat given to the petitioner in terms of Ext.P5 to any other candidate. ii. Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to grant time to the petitioner until 15.07.2012 along with all the original certificates etc. for admission to Dr. Somervell Memorial C.S.I. Medical College, Karakonam, Karakonam Post, Thiruvananthapuram in terms of the seat allotted to him as per Ext.P5; iii. Issue an interim direction directing the respondents not to allot the seat given to the petitioner in terms of Ext.P5 to any other candidate; iv. Issue a writ of certiorari of any other appropriate order or direction quashing the admission of the 6th respondent to the course M.D. Radio diagnosis in Dr. Somervell Memorial C.S.I. medical College, Karakonam, Thiruvananthapuram; v. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 5 to cancel the seat allotted to the 6th respondent in M.D. Radio diagnosis in Dr.Somervell Memorial C.S.I. Medical College, Karakonam, Thiruvananthapuram; vi. Somervell Memorial C.S.I. medical College, Karakonam, Thiruvananthapuram; v. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 5 to cancel the seat allotted to the 6th respondent in M.D. Radio diagnosis in Dr.Somervell Memorial C.S.I. Medical College, Karakonam, Thiruvananthapuram; vi. Issue an interim direction directing the respondents 1 to 5 not to permit the 6th respondent to attend classes in M.D. Radio diagnosis in Dr. Somervell Memorial C.S.I Medical College, Karakonam, Thiruvananthapuram; vii. Issue an interim direction directing the respondents 1 to 5 to produce the entire files pertaining to the selection and selection process in Post Graduate Medical Degree Courses in respect of the academic year 2012-2013 in Dr. Somervell Memorial C.S.I. Medical College, Karakonam, Thiruvananthapuram; 2. He further seeks direction to respondents 1 to 5 to cancel the seat allotted to the 6th respondent. 3. Counter affidavits have been filed. 4. We heard the learned counsel for the petitioner Shri B. Krishnamani and the learned counsel appearing for the respondents. 5. Shri B. Krishnamani, learned counsel for the petitioner would address the following arguments. He would submit that a highly meritorious candidate like the petitioner whose merit is beyond challenge as evident from his securing the first rank in the entrance examination is denied admission to the course for which the Controller of Examination has himself allotted the seat to the petitioner. He would point out that the results were announced on 28/5/2012. Options were called for and the petitioner gave his option for M.D. in Radio Diagnosis. The option was accepted and the petitioner had been directed to reach the college for which he had opted on 31/5/2012 with requisite tuition fee and original certificates. He reached the college on 31/5/2012. He could not produce two original certificates (Transfer Certificate and the Mark List). He was legally entitled to be admitted, but however arbitrarily and illegally he is denied the admission by the college authorities. According to the learned counsel, this is not a fair and transparent method of selection which alone a self financing college is entitled to do. He would submit that merely for the reason that the petitioner was not in a position to produce the certificates on 31/5/2012, he could not have been denied admission and instead the authorities should have granted time for production of the documents. He would submit that merely for the reason that the petitioner was not in a position to produce the certificates on 31/5/2012, he could not have been denied admission and instead the authorities should have granted time for production of the documents. According to the learned counsel, having regard to the time factor on 31/5/2012, it was impossible for the petitioner to produce the certificates. In fact, he has subsequently obtained Transfer Certificate and the Mark List from the Pushpagiri College so that he could join the college of the 4th respondent, it is submitted. The learned counsel would elaborate and submit that in the prospectus issued by the Association which is produced as Ext.P13, the Schedule of Selection and Admission is indicated. As per Clause 2.4 the Publication of Admission notice in the website of the Association is done on 31/3/2012. Thereafter various steps are to be taken by the Association to conduct the entrance examination, publication of results, select list, the provisional allotment list etc. As per Ext.P13 prospectus, the last date for taking admission under the first allotment is 25/4/2012. Publication of provisional second and final allotment list of candidates is to be done on 26/4/2012 and the last date for taking admission under the second and final allotment is shown as 28/4/2012. The learned counsel then refers Clause 6.1 of the Prospectus which declares that the candidates who get allotment shall take admission at the appointed time and the date in the college concerned and remit the admission fee and special fees for the first year. They shall also produce various documents in original at the time of admission. Undoubtedly, the documents include the transfer Certificate from the Institution last studied and originals of other certificates, copies of which are enclosed in the application form. Admittedly the examination was held only on 26/5/2012. The results were published only on 28/5/2012 and therefore a reasonable and fair interpretation of the prospectus as also the requirements that the colleges must act in a fair and transparent manner in the manner of selecting students would require that even if 31/5/2012 is generally accepted as the last date for admitting students for post graduate medical courses, the said date should stand extended in keeping with the fact that the entrance examination, which should have been held in April 2012, was held in May 2012. In other words, according to him, in the facts of this case unless and until the date 31/5/2012 is pushed into the future, it will result in manifest injustice. 6. Learned counsel appearing on behalf of the 3rd respondent would submit that no illegality has been committed. As far as the third respondent is concerned, he would submit that the third respondent made allotment in accordance with the option exercised by the petitioner. It so happened that the petitioner was unable to produce the required certificates in original on 31/5/2012. Similar arguments have been advanced by the learned counsel for the respondents. 7. The learned counsel for the 6th respondent would in fact point out that it does not lie in the mouth of the petitioner to blame the authorities for delay in holding the examination. It is pointed out that the petitioner participated in the examination which is not doubt held belatedly. As far as holding of the examination beyond the schedule mentioned in the prospectus is concerned, what is submitted by the respondents is that this is a case where holding the examination and publication of results got delayed for the reason that the Admission Regulatory Committee in the State took over the selection process and the examination was conducted by the Kerala University of Health Sciences. Necessarily that took some time and the examination could be only on 26/5/2012. The results were declared on 29/5/2012, according to the learned counsel for the third respondent. Immediately options were called for and the candidates were allotted on that basis, He would say that the last date for admission is stipulated by the judgments of the Apex Court and what this Court must pronounce is the legality of the action of the college authorities in refusing admission to the petitioner on the basis that he had not produced the documents on 31/5/2012. 8. The learned counsel for the petitioner would point out that as a result of all that was happened the petitioner, who is a first rank holder, is discarded and the 6th respondent who has obtained very low marks, is preferred and according to him, the6th respondent was only in the waiting list. The learned counsel for the petitioner would point out a decision of the Apex Court reported in Asha v. Pt. B.D. Sharma University (2012 (6) SCALE 287). The learned counsel for the petitioner would point out a decision of the Apex Court reported in Asha v. Pt. B.D. Sharma University (2012 (6) SCALE 287). The Apex Court inter alia held as follows: “31. There is no doubt that 30th September is the cut-off-date. The authorities cannot grant admission beyond the cut-off-date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cut-off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate is the question we have to answer. having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to a meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given admission in the ESM category in the MBBS course. It is not only unfortunate but apparently unfair that the appellant be denied admission. Though there can be rarest of rare cases or exceptional circumstances where the courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay and that there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. [Refer Arti Sapru and Others v. State of J & K and Others [(1981) 2 SCC 484]: Chavi Mehrotra v. Director General Health Services [(1994) 2 SCC 370] and Aravind Kumar Kankane v. State of UP and Others [(2001] 8 SCC 355]” In this context, the learned counsel for the petitioner would point out that the court may note that the action of the respondent-college is per se unsustainable as can be seen from the fact that the 6th respondent was given admission and even for a moment ignoring the petitioner. Even they are not given admission. Therefore, it is pointed out that there is illegality and arbitrariness afflicting the selection of the 6th respondent. 9. The learned counsel for the petitioner would pose the question as what prevented the third respondent from holding the examination in April 2012. The argument is on the basis of the Admission Regulatory Committee stepped in only in May 2012. 10. Reliefs are in this case sought essentially against an unaided private college. Undoubtedly going by the decisions rendered by the Apex Court, the unaided institutions are free to make admissions. However, the admission procedure must be fair and pursuant to the direction by the Apex Court a committee has been set up in the State of Kerala for regulating admissions. Going by the prospectus issued by the Private Management Association, which consists of four colleges including the respondent-college, the Entrance examination should have been held on 15/4/2012 which was to be preceded by certain steps and to be followed by certain further steps. The prospectus contemplated culmination of the procedure by 28/5/2012 which is the last date for taking admission. Apparently, this was intended, so that the procedure should have been completed sufficiently early, keeping in view the outside time limit fixed by the Apex Court, namely 31/5/2012. The learned counsel for the petitioner is correct in complaining that the candidates must be given reasonable time as they would have to be present with necessary certificate and fairly large sums of money. This is apparently the rationale for the schedule indicated in the prospectus. 11. The learned counsel for the petitioner is correct in complaining that the candidates must be given reasonable time as they would have to be present with necessary certificate and fairly large sums of money. This is apparently the rationale for the schedule indicated in the prospectus. 11. But, in this case the petitioner’s stands overtaken by developments which were initiated at the instance of the Statutory Admission regulatory Committee in the State, that is to say the fact that the Admission Regulatory Committee took over the selection process apparently sensing some grave irregularities in the selection by the association and it proceeded to hold the test. In this regard, we cannot find blame with the colleges to such an extent that we should hold that last date fixed by the Apex Court should stand extended. Suffice it to reiterate that the examination was held only on 26/5/202. In this context, we cannot overlook the arguments of the learned Senior counsel for the 6th respondent that the petitioner also participated in the examination which was held on 26/5/2012. While it is not the law that there is a presumption that every one knows the law, we cannot say that the petitioner can ignore the date fixed by the Apex Court namely 31/5/2012. It may be true a Shri Krishnamani points out that as on 28/4/2012, the petitioner had not been admitted in the Pushpagiri College and if the test had been held as scheduled in Ext.P13 prospectus, he may had much larger time to be ready for admission by 31/5/2012. But by the action of the statutory committee, the examinations could be held only in May 2012 by which time the petitioner had already secured admission in another college. Documents were with the said college. It is true that within a short notice the petitioner may have been unable to secure those documents and produce them before the 4th respondent, college on 30/5/2012. But we are called upon to decide in this writ jurisdiction the legality of the action of the self financing college. It is true that as contended by the learned counsel for the petitioner that if the admission in a particular case is denied in a manner which is palpably illegal then it may open to the court go grant admission beyond the date namely 31/5/2012. It is true that as contended by the learned counsel for the petitioner that if the admission in a particular case is denied in a manner which is palpably illegal then it may open to the court go grant admission beyond the date namely 31/5/2012. But the question is whether the college authorities would be free to ignore the last date. 12. In this case admittedly the petitioner did not produce documents on 31/5/2012. Therefore, the college authorities cannot be clamed if they decided to deny admission to the petitioner. If they are blameless in the matter of denial of admission to the petitioner, we would think that it should be the end of our enquiry, for our jurisdiction to grant relief should be based on the legality of the action taken by the respondents. We are of the view that the college authorities could not have possibly postponed the date of admission, which is fixed by the Apex Court in a series of decisions, on the basis that documents could not be produced by the petitioner and that he wanted time. Granting of time to the petitioner would have resulted in two consequences. The petitioner may have produced the documents beyond 31/5/2012 and the college authorities would have then to make admission at a time when he later produced the documents. If the college authorities had ventured to do that, their action would have breached the well articulated dead line fixed by the Apex Court. It is another matter, where the college authorities act illegally in appropriate cases, the court may grant relief. If time had been granted to the petitioner to produce the documents and the seat was kept unfilled, we must consider the possibility of the petitioner not producing the documents within a reasonable time. If such an eventuality had happened, the college authorities could not have possibly filled up that seats by giving admission to anybody else and it would have resulted in the lapse of a seat. We are of the view that we cannot find fault with the respondent college in the sense that we cannot dub the action of the college authorities as illegal. We are of the view that we cannot find fault with the respondent college in the sense that we cannot dub the action of the college authorities as illegal. The action of the college authorities in granting admission to the 6th respondent who secured very low marks, according to the petitioner, need not be examined at the instance of the petitioner as the question is whether the denial of admission to the petitioner is legal or not. We have already held that the denial of admission to the petitioner cannot be characterized as illegal. In such circumstances, though with some reluctance we are constrained to decline the reliefs sought for in this writ petition. We accordingly dismiss the writ petition.