Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 387 (KER)

FATHIMA S. , W/O. ABDULLA HANEEFA v. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT

2018-05-25

SHAJI P.CHALY

body2018
JUDGMENT : This writ petition is filed by the petitioner seeking to declare that the seats which are reverted to the State quota as seen in Ext.P5 are liable to be included in the 2nd round of allotment process of State quota of admission to Speciality Post-Graduate Courses in Dental Surgery (MDS - Master of Dental Surgery) for the year 2018-19 and the said options are to be reflected in the website of 2nd respondent prior to the completion of 2nd round of allotment process of State quota i.e. 16.05.2018, and for other consequential reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is a BDS graduate from the Kerala University and a candidate applied for admission to the aforesaid course for the year 2018-19. She appeared for the National Eligibility-cum-Entrance Test (NEET) 2018-2019, and successfully cleared the said examination. The All India 50% quota rank of the petitioner is 101 and All India 50% Quota category rank of the petitioner is 40, as per Ext.P1. Petitioner is also included in the merit list prepared for filling up of MDS seats in Kerala State Quota, as per Ext.P2 data sheet of the petitioner for the year 2018-19. In the said list, the rank of the petitioner is 21. 3. Even though petitioner had secured high rank, she did not get seat in the first allotment. Hence, the petitioner decided to add or change or update the options submitted by her. But the petitioner was unable to find seats in any of the Government colleges despite the vacancy existed in the said colleges. It is also submitted that, for the seats in the Government colleges in Kerala, there are two categories. One is All India quota and the other is State quota. The seats of the former category were not included in the allotment process conducted by the Commissioner of Entrance Examinations, Kerala and only the seats in the State quota were included in the said allotment process as per Ext.P4 Prospectus. The seats of the All India quota were not included in the State list as per the rules and regulations provided in Clause 6.1.1 of Ext.P4 Prospectus. Therefore, according to the petitioner, petitioner opted only for the seats in State quota and not for the seats in All India quota. 4. The seats of the All India quota were not included in the State list as per the rules and regulations provided in Clause 6.1.1 of Ext.P4 Prospectus. Therefore, according to the petitioner, petitioner opted only for the seats in State quota and not for the seats in All India quota. 4. It is further submitted that, now the 2nd round of the allotment process of seats in All India quota has concluded. There are about 10 seats which are reverted back to the State due to non-joining of the students to whom the seats were allotted. Since the seats are reverted back to the State, the said seats and courses ought to have been included in the seats of current State quota and the petitioner ought to have been given an opportunity to update her options including the above said seats mentioned in Ext.P5. Accordingly, the petitioner and similarly situated persons are given the opportunity to change and update the options which they had given at the time of the first allotment. As the seats which are reverted back to the State is not being reflected in the State quota and the said seats and courses are not being shown as the options which could be chosen by the petitioner while updating/changing her options for 2nd round of allotment of process, petitioner is unable to exercise her option. These are the background facts projected by the petitioner to secure the reliefs sought for in the writ petition. 5. A detailed counter affidavit is filed by the 2nd respondent refuting the allegations and claims and demands raised by the petitioner. These are the background facts projected by the petitioner to secure the reliefs sought for in the writ petition. 5. A detailed counter affidavit is filed by the 2nd respondent refuting the allegations and claims and demands raised by the petitioner. Apart from the same, it is contended that, from Clauses 11(A)(i), 11(A)(xi), 11(A)(xii) and 11(A) (xiii) of the Prospectus for Admission to the Post-Graduate Courses in Dental Surgery, option is to be exercised as regards a college/course and not as regards a particular seat in a particular college for a particular course, which read thus : “11(A) General Quota (i) The allotment to all the courses for all categories will be made through a Centralized Allotment Process which is a Single Window System (SWS) of Allotment to give allotments to the PG Dental seats in the Dental Colleges based on the options submitted online by the candidates who have been included in the Rank list and Category lists prepared by the CEE based on the Entrance Examination for Admission to MDS Courses-2018. The Centralized Allotment is a simple and transparent process of allotment to the courses and it gives the candidate opportunity to exercise his/her options for colleges of his/her choice conveniently in the order of his/her preference considering all those available to be chosen from. The allotments will be strictly based on the options exercised, the rank obtained and eligible reservations of the candidate. Candidates should register options only to those courses and colleges which they are sure to join on allotment. If the candidate fails to remit fee/join the college, he/she will not be eligible for any further allotment to any course/college. (xi) Courses and Colleges available for registering options: The list of Courses and Colleges for allotments through the SWS will be available in the Home page of the candidate. The 'College List' link when clicked will show all the Colleges and their three-letter codes. A candidate may examine this list further to see the courses and the number of seats for each category in these colleges by clicking on the College Code. An overall idea of the Colleges and their Codes will help the candidate to register his/her options without any difficulty. A candidate may examine this list further to see the courses and the number of seats for each category in these colleges by clicking on the College Code. An overall idea of the Colleges and their Codes will help the candidate to register his/her options without any difficulty. (xii) How to register options in his/her Home Page: By entering the option number for a course-college combination the candidate can fix his/her preference numbers for the course-college combinations displayed in the Home Page. Here all the eligible options of the candidate will be displayed course-wise and the candidate is expected to enter his/her preference number for a particular combination. (xiii) Registering of the Options and saving/revising the Options registered: All eligible options of the candidate will be displayed on the Home Page. The candidate may follow the directions given therein to register the options. The data entered may be saved regularly by clicking the 'Save' button, so that the data already entered is not lost due to unexpected reasons. The candidate should enter only those options in which he/she is interested. Candidates should also note that he/she will be considered for allotment only to those courses/colleges opted by him/her. So, a candidate who has not opted for a college will not be considered for allotment to that college. Existing options, registered by the candidate and available in the Home Page, can be cancelled by entering the number 0' against that particular option to be cancelled and by clicking the 'Update' button. All options registered by the candidate will be processed. If a candidate gets allotted to a particular seat, based on his/her option, he/she is bound to accept it, failing which, he/she will lose that allotment as well as his/her claims for any seat in any college. Such candidates will not be eligible for any further online allotment in any college.” 6. If a candidate gets allotted to a particular seat, based on his/her option, he/she is bound to accept it, failing which, he/she will lose that allotment as well as his/her claims for any seat in any college. Such candidates will not be eligible for any further online allotment in any college.” 6. That apart, it is stated that, Clauses 11(A)(xvii)(5), 11(A)(xvii)(6) and 11(A)(xvii)(7) of the Prospectus for Admission to the Post-Graduate Courses in Dental Surgery-2018 provides for the manner in which options exercised by the candidates are to be taken into account in subsequent allotments, which read thus : “11(A)(xvii) -Processing of Options and Allotment : x x x x x x x x x x x x x x x x Online Option Confirmation Candidates who are having valid options and who are willing to participate in the second allotment/subsequent allotments have to log in to his/her Home page and confirm their options by clicking the 'Confirm' button available in his/her Home page. Candidates can delete their unwanted options or alter their priority for existing options only after the online option confirmation. If a candidate who does not confirm the higher order options by clicking the 'Confirm' button available in his/her Home page, his/her higher order options will not be available in subsequent phases. However, his/her existing allotment shall be retained, subjected to the condition of the Prospectus. 5. After each allotment, the options below the 'allotted one' of the candidate will automatically be removed from the option list of the candidate. For example, if a candidate had registered 10 options in all, and if he/she is allotted his/her 5th option, all options from 6 to 10 will be removed from the option list. Since the 5th option is the allotted one, it will not be seen in the option list. Options from 1 to 4 only will remain valid and will be considered for future allotments. 6. If a candidate is satisfied with an allotment and does not want to be considered against his/her remaining options, he/she will have the facility to cancel all the remaining options. He/she may also cancel specific options among the remaining options as per his/her desire. The candidate will also have the facility to alter the priority of the remaining options. But the candidate will not be permitted to register any fresh options to the existing ones. 7. He/she may also cancel specific options among the remaining options as per his/her desire. The candidate will also have the facility to alter the priority of the remaining options. But the candidate will not be permitted to register any fresh options to the existing ones. 7. The facility for confirmation and cancellation/deletion/alteration will be available for a specified period of time as notified, after which the facility will be withdrawn. A candidate retaining all or any of the options after each allotment is bound to accept the next allotment, if any, given to him/her. If the candidate fails to accept the allotment, he/she will lose all the allotments/admission and will not be considered for any further allotments to any course or college.” 7. Thus, according to the 2nd respondent, the Prospectus mandates that option is to be exercised by a candidate as regards a College/Course; that the option is not to be exercised as against a “particular seat” or “seats in the State Quota”; that the option is to be exercised before the first allotment; that a candidate who wants to take part in the second allotment has to confirm his/her already exercised options; that a candidate satisfied with his/her allotment in the first round can cancel the options; that a candidate can rework priority of the already exercised options; and that no fresh options can be exercised in the second round of allotment. 8. It is further submitted that, altogether there are 70 seats in the State for Post-Graduate Dental Courses in the Government Colleges. 35 seats were allotted to All India Quota. Ten seats were reverted back to the State Quota as those were not filled up by All India Quota candidates. These seats were included, and the seat matrix was revised as per Ext.R2(a) Government Order dated 09.05.2018. Therefore, according to the 2nd respondent, the contention raised in the writ petition that the seats that were reverted back to the State from the All India Quota have not been included with the State Quota is not correct. It is also contended that, the claim of the petitioner that, the petitioner ought to have been given opportunity to update the options including the reverted seats from the All India quota, cannot be sustained under law. 9. It is also contended that, the claim of the petitioner that, the petitioner ought to have been given opportunity to update the options including the reverted seats from the All India quota, cannot be sustained under law. 9. Second respondent has also issued Ext.R2(b) Notification dated 11.05.2018 in respect of the online registration/option confirmation with regard to second phase of allotment to Post-Graduate Dental Courses. Therefore, on a conjoint reading of the aforementioned clauses of the Prospectus for Post-Graduate Dental Courses, Exts.R2(a) and R2(b) Government Order and Notification respectively, it is clear that no new courses in Government Colleges or new Government Colleges have been added for allotment as part of reversion of seats from All India Quota; that no fresh options could be made by the candidates for the second allotment; that parties are only expected to seek confirmation of the already exercised options and re-arrangement of priority of already exercised options; and that fresh options can be exercised only in the case of three Self Financing Colleges, to which the courses were added to the zone of consideration in the second round of allotment. Therefore, respondents seek dismissal of the writ petition. Other contentions are also raised with respect to the action initiated by the respondents on account of reversion of seats from the All India Quota. 10. I have heard learned counsel for the petitioner and the learned Senior Government Pleader. Perused the documents on record and the pleadings put forth by the respective parties. 11. When this writ petition came up for admission on 15.05.2018, an interim order was passed by this Court, on the basis of the submission made by the learned Government Pleader, on instructions, that pursuant to the release of the seats from the All India Quota to the State Quota, the candidates have been permitted a change of their options or exercise of further options in respect of the additional seats made available in the State Quota pursuant to the non-filling up of the seats in the All India Quota, and the petitioner will be free to exercise further option in respect of the additional seats now made available in the State Quota as per Ext.P5. 12. 12. However, on 18.05.2018, I.A.No.8480 of 2018 is filed, seeking to vacate the interim order, stating that a confusion occurred, since the instructions were received over telephone and since the petitioner has only produced a portion of the Prospectus, by which, the real intricacy of the matter was not reflected, thus disabling the Court also to consider the question of passing the interim order. 13. Learned counsel for the petitioner submitted that, since the seats are reverted back from the All India Quota, petitioner is entitled to exercise the options afresh. It is also contended that, while exercising the options to the State Quota, petitioner did not have any opportunity to exercise the option against the seats which were allotted to 50% All India Quota. It is further contended that, there is no clarity with respect to the issue of consideration of the seats reverted back from the All India Quota, and therefore, in view of the interim order passed by this Court on 15.05.2018, petitioner has already exercised the option afresh, and therefore, petitioner is entitled to be considered on account of the interim directions issued by this Court. 14. On the other hand, learned Senior Government Pleader submitted that, a candidate has to exercise option against a course or a college. Petitioner has exercised her option evident from Ext.P3, which read thus : “Government of Kerala Master of Dental Surgery 2018 Roll No.100068 OPTION LIST Op No. Group Type Course College Quota 1. D G OR-Orthodontics TVD-Govt. Dental College, Thiruvananthapuram 2. D G OR-Orthodontics KTD-Govt. Dental College, Kottayam 3. D G OR-Orthodontics KKD-Govt. Dental College, Kozhikode 4. D G CD-Conservative Dentistry TVD-Govt. Dental College, Thiruvananthapuram 5. D G CD-Conservative Dentistry KTD-Govt. Dental College, Kottayam 6. D G CD-Conservative Dentistry KKD-Govt. Dental College, Kozhikode 7. D G PO-Prosthodontics TVD-Govt. Dental College, Thiruvananthapuram 8. D G PO-Prosthodontics KTD-Govt. Dental College, Kottayam 9. D G PO-Prosthodontics KKD-Govt. Dental College, Kozhikode 15. Now the course opted by the petitioner on account of Reversion of All India Quota is given at Sl.No.18 of Ext.P5, which is at Government Dental College, Thiruvananthapuram for the discipline 'Periodontia', against one seat. It is clearly evident from Ext.P3 quoted above that, petitioner has not opted for the said course and college. It is clearly discernible from Clause 11 of the Prospectus quoted above that, options once exercised cannot be changed under any circumstances. It is clearly evident from Ext.P3 quoted above that, petitioner has not opted for the said course and college. It is clearly discernible from Clause 11 of the Prospectus quoted above that, options once exercised cannot be changed under any circumstances. Since the petitioner has not opted for the course that is reverted, there is no scope for the petitioner to exercise any further option. If the petitioner was interested to opt the course/seats that is reverted back, petitioner ought to have exercised the option before the first allotment process, which is a peremptory condition prescribed under Clause 11 of the Prospectus. This is not under dispute. The case of the petitioner is that, there is no clear-cut methodology with respect to the seats that are reverted back from the All India Quota in the Prospectus issued by the State Government. In my considered opinion, that is not correct. The entire Prospectus is produced by the learned Senior Government Pleader, by filing a memo dated 21.05.2018. Clause 12 A(i) of the Prospectus is relevant to the context, which read thus : “12. A: Distribution of un-availed seats under All India Quota & conditions governing /seeking admission and or holding multiple MDS seats concurrently in other States & AIQ :- (i) The distribution of MDS seats that are reverted back from the All India Quota (AIQ) will be strictly as per the State allotment policy. After assessing the number of seats reverting to State quota from AIQ, Government will decide and notify the distribution of seats to merit and reservation categories following the very same reservation principles adopted in respect of the State quota. The speciality wise and Colleges wise distribution will be decided only 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 by CEE.” 16. On a reading of Clause 12A(i), it is categoric and clear that the distribution of MDS seats that are reverted back from the All India Quota will be strictly as per the State allotment policy. After the reversion of the seats from the All India Quota, the State Government have issued Exts.R2(a) and R2(b) order and Notification, prescribing the manner in which the seats are distributed. After the reversion of the seats from the All India Quota, the State Government have issued Exts.R2(a) and R2(b) order and Notification, prescribing the manner in which the seats are distributed. Since a policy is already prescribed as per the Prospectus issued by the State Government and since there is a clear-cut procedure prescribed under the Prospectus for dealing with the reverted seats, the contention advanced by the petitioner that there is no procedure prescribed in the Prospectus, cannot be sustained. 17. Learned counsel for the petitioner also submitted that, if the petitioner is more meritorious than any candidate who has exercised the option for the seat that is reverted back from the All India Quota, petitioner is entitled to get admission to the said seat. However, such a submission is made by the petitioner without construing the entire provisions of the Prospectus in a legalistic manner. Once a seat from the All India Quota is reverted back, the State admission policy will come into play. State allotment policy is prescribed under the Prospectus. Clause 12.A(i) deals only with publication notifying the distribution of seats to merit and reservation categories following the very same reservation principles adopted in respect of the State Quota. Petitioner is not having a case that the reservation policy is not followed by the State Government. I am also informed by the Senior Government Pleader that, yet another candidate has exercised her option against the seat reverted back before the first allotment process, and therefore, if any orders are passed, permitting the petitioner to exercise the option which is not contemplated under the Prospectus, it will materially affect the candidate who has already exercised the option against the seat reverted back from the All India Quota. 18. It is clear from Ext.P3 option exercised by the petitioner that, petitioner has not exercised the option for the reverted seat, even though petitioner has exercised the option for various other disciplines in the Government Dental College, Thiruvananthapuram. If the petitioner is permitted to exercise a fresh option now, it will upset the options exercised by the other candidates, and it will be an arbitrary exercise of power, especially due to the fact, rule of the game will be changed in that process. 19. If the petitioner is permitted to exercise a fresh option now, it will upset the options exercised by the other candidates, and it will be an arbitrary exercise of power, especially due to the fact, rule of the game will be changed in that process. 19. Above all these aspects as submitted by learned counsel for the petitioner, there is every possibility of a less meritorious candidate getting admission for a particular course, but that is an inevitable consequence, since an element of gambling is involved in the exercise of option, along with other aspects. Here it is relevant to note, the seat in question reverted from the All India Quota was not a course at the choice of the petitioner while exercising the option. Moreover, petitioner has participated in the process knowing fully well the rule of the game under the Prospectus. Even though reluctantly, I am constrained to add that, the whole situation arose in the matter of the passage of interim order for want of production of the relevant pages of the Prospectus, and it is not welcoming to produce a document before the Court in piece-meal, and that too, the portion favourable to the petitioner. I am also of the opinion, the provisions of a Prospectus are to be read harmoniously in order to decipher the exact rule position. 20. Learned Senior Government Pleader has invited my attention to the judgment of the apex court in 'Arvind Kumar Kankane v. State of U.P. and Others' [ 2001(8) SCC 355 ], wherein it is held that, rule providing of allotment of subject (speciality) and college of study made on the basis of option exercised by a candidate is final and no candidate can be permitted to change the subject or the college. It is also held therein that, effect of putting the seat back for counselling for all candidates would be to upset the entire counselling which had already taken place and the seat not included in first counselling by mistake to be offered to wait listed candidate and not to candidate who was allotted seat at earlier counselling. I am of the considered opinion that, the very same issue remains in this writ petition. 21. I am of the considered opinion that, the very same issue remains in this writ petition. 21. So also, learned Senior Government Pleader has invited my attention to a Division Bench judgment of this Court in 'Hanna Thasnim v. State of Kerala and Others' [ 2014 KHC 210 ], wherein the issue with respect to a more meritorious candidate was considered and held as follows : “We are of the view that in the allotment process visualised by Ext.P2, it cannot be said that merit alone is the criterion. Options exercised by candidates definitely have an important role to play in the matter of allotment. Ratio in Asha's case and Priya Gupta's case (supra) can be applied if only the petitioner establishes that her rights according to merit and option have been violated.” In my considered opinion, the law laid down by the apex court as well as the Division Bench of this Court referred to above also provides a clear guideline to tackle a situation like the one projected by the petitioner, and therefore, it is clear that the petitioner is not entitled to the reliefs sought for in the writ petition. 22. Having assimilated the situation and appreciating the arguments advanced at the Bar, I am of the considered opinion that, petitioner is not entitled to get any reliefs as is sought for in the writ petition. Necessarily, writ petition has to fail, accordingly, it is dismissed. The interim order granted by this Court on 15.05.2018 will stand vacated. The writ petition is dismissed accordingly.