Dismissed

C.P.Ramachandran v. State of Kerala

Kerala HC20 Jul 2016WP(C)/24164/2016

Case brief

AI extract

What is this about?

This writ petition challenged a refusal of admission after the September 30 cut-off and sought to quash an RTI reply. The court held the RTI reply is not challengeable here and dismissed the admission petition as the candidate failed to act promptly and the rank list expires.

What did the court decide?

Writ petition dismissed; petitioner may approach appellate authority under RTI Act regarding Ext.P7.

C.P.Ramachandran Vs State of Kerala — Education and Admissions | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938

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WP(C).No. 24164 of 2016 (U) ----------------------------

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PETITIONER(S) :-

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1. C.P.RAMACHANDRAN, AGED 57, S/O NARAYANAN NAIR, RESIDING AT AVANTHICAUD HOUSE, MARAYAMANGALAM SOUTH POST, NELLAYI, PALAKKAD - 679 335.

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2. ANJANA, D/O C.P.RAMACHANDRAN, RESIDING AT AVANTHICAUD HOUSE, MARAYAMANGALAM SOUTH POST, NELLAYI, PALAKKAD - 679 335.

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BY ADVS.SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH SMT.PREETHY R. NAIR

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RESPONDENT(S) :-

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1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2. ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA PRASANTH BUILDINGS, M.P.APPAN ROAD VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014 REPRESENTED BY ITS MANAGER.

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3. MALABAR MEDICAL COLLEGE HOSPITAL AND RESEARCH CENTRE MODAKKALLUR P.O., ATHOLI VIA, KOZHIKODE - 673 001 REPRESENTED BY ITS AUTHORISED AUTHORITY.

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4. THE COMMISSIONER OF ENTRANCE EXAMINATIONS HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN : 695 014.

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WP(C).No. 24164 of 2016

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5. AL-AZHAR MEDICAL COLLEGE AND SUPER SPECIALITY HOSPITAL EZHALLOOR, THODUPUZHA, IDUKKI DISTRICT - 685 584 REPRESENTED BY ITS AUTHORISED AUTHORITY.

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BY SR.GOVERNMENT PLEADER SRI.M.MOHAMMED SHAFI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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jvt

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WP(C).No. 24164 of 2016 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS :-

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EXHIBTI P1: THE PHOTCOPY OF THE PETITION SUBMITTED BY THE AGGRIEVED PERSON. EXHIBIT P2: THE PHOTOCOPY OF THE DIRECTION ISSUED BY THE SECOND RESPONDENT.

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EXHIBIT P3: PHOTCOPY OF THE COMPLAINT FILED BY THREE AGGRIEVED PERSONS OUT OF THE FOUR PERSONS IN EXHIBIT P1.

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EXHIBIT P4: TRUE PHOTOCOPY OF THE REPLY DATED 9.2.2016 SUBMITTED BY M/Z.AZEEZIA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH TO THE SECOND RESPONDENT.

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EXHIBIT P5: THE PHOTOCOPY OF THE REPORT DATED 22.9.2016 OF THE COMMISSION FOR MINORITY.

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EXHIBIT P6: THE PHOTOCOPY OF THE REPLY DATED 6.2.2016. EXHIBIT P7: PHOTOCOPY OF THE LETTER DATED 16.6.2016. EXHIBIT P8: THE TRUE COPY OF THE PUBLICATION NOTICE DATED 7.10.2015.

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EXHIBIT P9: TRUE COPY OF THE ADDITIONAL APPROVAL ORDER DATED 30.1.2016.

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RESPONDENT(S)' EXHIBITS :- NIL -----------------------

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//TRUE COPY//

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P.A. TO JUDGE

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P.R.RAMACHANDRA MENON, J & ANIL K. NARENDRAN, J

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W.P.(C) No.24164 of 2016

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Dated this the 20^th day of July 2016

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J U D G M E N T

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Anil K. Narendran, J.

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The 1^st petitioner is the father of the 2^nd petitioner. The 2^nd petitioner secured rank No.2108 in the entrance examination conducted by the Commissioner of Entrance Examinations, the 4^th respondent herein, for admission to Medical courses for the academic year 2015-2016. The petitioners have approached this Court in this writ petition seeking to issue writ of certiorari to quash Ext.P7 communication issued by the State Information Officer in the Office of the by the Admission Supervisory Committee for Professional Colleges in Kerala, the 2^nd respondent Committee. The petitioners have also sought for a writ of mandamus commanding the respondents to remove the students, who got admission through backdoor for MBBS course for the year 2015-2016 and a writ of mandamus commanding the respondents to admit the 2^nd petitioner in MBBS course in the year 2015-2016 or to provide her admission in the current academic year i.e., 2016-2017.

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We heard the arguments of the learned counsel for the petitioners and also the learned Senior Government Pleader

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W.P.(C) No.24164 of 2016

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representing respondents 1 and 4.

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The pleadings and materials on record would show that the 2^nd petitioner appeared for the entrance examination conducted by the Commissioner for Entrance Examinations, the 4^th respondent herein, for medical courses for the academic year 2015-2016 and secured rank No.2108. The 2^nd petitioner could not secure admission for MBBS course during the academic year 2015-16. Alleging irregularity in the admission process for the academic year 2015-16, some of the students have approached the 2^nd respondent Committee in Ext.P1 petition dated 29.1.2016. The name and rank of the 2^nd petitioner is also mentioned in the said complaint. Based on the said complaint, the 2^nd respondent committee issued notice to various colleges, including the 3^rd and 5^th respondents herein. Along with Ext.P2 notice issued by the 2^nd respondent Committee, Ext.P3 complaint dated 29.1.2016 submitted three other students who appeared for the Medical Entrance Examination for the academic year 2015-16 was also enclosed.

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On receipt of Ext.P2 notice, one Medical College, namely, Assisia Institute of Medial Sciences and Research, Kollam submitted Ext.P4 reply pointing out that the said College had considered all the applications received for MBBS course and the admissions were

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made as per the prospectus approved by the 2^nd respondent Committee and that the details of the admission process were submitted before the Kerala University of Health Sciences and also the Medical Council of India within the stipulated time.

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Relying on Ext.P5 report dated 22.9.2015 submitted by the Kerala State Commission for Minorities, the petitioner would contend that the said Commission had received various complaints against the admission made in various Medical Colleges in the State having minority status and that by Ext.P6 letter dated 6.2.2016, the said Commission has made it clear that if there is any irregularity in the admission, it is for the 2^nd respondent Committee to take appropriate action.

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The 1^st petitioner made an application before the 2^nd respondent Committee, under the Right to Information Act, 2005, to provide a list of candidates admitted in various Medical Colleges in the State. To the said application, the 1^st petitioner received Ext.P7 reply dated 16.6.2016 of the State Information Officer in the Office of the 2^nd respondent Committee stating that as per the directions of the Apex Court and the Medical Council of India, admission to MBBS Course was closed on 13.9.2015 and no seats are available and as such no further action is necessary in the

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W.P.(C) No.24164 of 2016

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application submitted by the 2^nd petitioner.

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Relying on Ext.P8 notice, issued by the 3^rd respondent College, namely, Malabar Medical College Hospital and Research Centre, Kozhikode, the petitioner would contend that 15 seats were available in that College as on 7.10.2015 for those candidates who are qualified in the All India Medical Examination, 2015. The petitioners would also rely on Annexure A9 additional approval order dated 30.1.2016 of the 2^nd respondent Committee rejecting approval of the admission of certain candidates in the 3^rd respondent Medical College. Therefore, according to the petitioners, it was due to the illegalities/irregularities in the admission made to MBBS Course during the academic year 2015-16, the 2^nd petitioner lost her legitimate right of getting admission for the said course. It is in such circumstances, the petitioners have approached this Court in this Writ Petition, seeking various reliefs.

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As far as the relief sought for against Ext.P7 communication dated 16.6.2016 issued by the State Information Officer in the Office of the 2^nd respondent Committee is concerned, if the 1^st petitioner is dissatisfied with the information furnished therein, he can approach the appellate authority under the Right to Information Act, 2005. In view of the statutory remedy available

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W.P.(C) No.24164 of 2016

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under the aforesaid Act, the legality or otherwise of Ext.P7 which is not an order passed by the 2^nd respondent Committee need not be considered in this Writ Petition filed under Article 226 of the Constitution of India. Therefore, if the 1^st petitioner is dissatisfied with the information furnished in Ext.P7, it is for him to avail such appellate remedy within a period of two weeks from the date of receipt of a certified copy of this judgment.

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The further relief sought for in this Writ Petition is a writ of mandamus commanding the respondents to remove the students who got admission to MBBS Course for the year 2015-16 through back door and also a writ of mandamus commanding the respondents to admit the 2^nd petitioner for MBBS Course in the academic year 2015-16 or to provide her admission in the current academic year, i.e., 2016-17.

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As per the Regulations framed by the Medical Council of India, the last date for making admission to MBBS Course is 30^th of September of the relevant academic year and as such, the cut off date for making admission to MBBS Course for the academic year 2015-16 was 30.9.2015. From the pleadings and materials on record, it could be seen that some of the students who were qualified in the Medical Entrance for the year 2015, approached the

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2^nd respondent Committee in Ext.P1 complaint alleging irregularity in the process of admission and the said complaint is one dated 29.1.2016, filed much after the cut off date of 30.9.2015 for making admission and much after the commencement of the MBBS Course for the academic year 2015-16. Similarly, Ext.P3 complaint made by some of the students similarly situated was made only on 29.1.2016.

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The pleadings and materials on record would not show that the petitioners made any complaint before the 2^nd respondent Committee either before the cut off date of 30.9.2015 or immediately thereafter, complaining any irregularity in the admissions made for MBBS Course - 2015-16. If any such complaint was made, while the admission process was going on, the 2^nd respondent Committee could have considered the same in exercise of its powers before granting approval for the admissions so made while issuing orders similar to Ext.P9.

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In view of the law laid down by the Apex Court in Mriduldhar v. Union of India (2005 (2) SCC 65) and reiterated in Priya Gupta v. State of Chattisgarh (2012 (7) SCC 433) and Chandigarh Administration v. Jasmine Kaur (2014 (10) SCC 521) no admission could be made for MBBS Course, after the dead

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W.P.(C) No.24164 of 2016

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line of 30^th September of the relevant academic year. In Priya Gupta's case (supra), the Apex Court held that the cut off date prescribed in the Schedule had the force of law, in as much as they form part of the judgment of the Apex Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the Regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. None of such authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgment of the Apex Court and in the Regulations framed by the Medical Council of India.

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In Jasmine Kaur's case (supra), the Apex Court reiterated that the schedule relating to admission to Professional Colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the Court or any authority and no midstream admissions shall be permitted. In the said decision, the Apex Court has made it clear that, under exceptional circumstances, if the court finds that there is no fault attributable to the candidate, i.e., the candidate has pursued his/her legal right expeditiously without any delay, and that there is fault only on the part of the authorities or there is an apparent breach of

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Rules and Regulations as well as the related principles in the process of grant of admission which should violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time schedule prescribed, it would be completely just and fair to provide exceptional relief to candidates under such circumstance alone.

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In Jasmin Kaur's case (supra), the Apex Court has also made it clear that if a candidate is not selected during a particular academic year due to the fault of the Institutions/authorities, and in this process if the seats are filled up and the scope of granting admission is lost due to eclipse of time schedule, then under such circumstances, the candidate should not be victimised for no fault of his/her and the court may consider grant of appropriate compensation to offset loss caused, if any. In the said decision, the Apex Court has stated in categorical terms that, when a candidate does not exercise or pursue his/her rights, or legal remedies, against his/her non-selection expeditiously and promptly, then the courts cannot grant any relief to the candidate in the form of securing admission.

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In Asha v. Pt. V.D.Sharma University of Health Sciences (2012 (7) SCC 389), the Apex Court has reiterated that

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W.P.(C) No.24164 of 2016

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the authorities cannot grant admission for MBBS Course 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, exemption can be made. Paras.30, 31 and 32 of the judgment read thus:

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“30. 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.

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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

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that the appellant be denied admission.

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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.[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.”

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In Para.38.2 of the judgment in Asha's case (supra), the

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Apex Court has made it clear that, 30^th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counseling by 15^th September of the relevant academic year [in terms of the decision of this Court in Priya Gupta (supra)]. Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or

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W.P.(C) No.24164 of 2016

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pressing emergency, admission may be permissible but such power may preferably be exercised by the courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extra - ordinary jurisdiction of admitting candidates to the courses after the deadline of 30^th September of the relevant academic year. This, however, can only be done if the conditions stated by the Apex Court in the case of Priya Gupta (supra) and Asha's case (supra) are found to be unexceptionally satisfied and the reasons therefor are recorded by the court of competent jurisdiction.

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Therefore, going by the law laid down by the Apex Court in the decisions referred to supra, only in exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission is permissible for MBBS Course after the cut off date of 30^th September of the relevant academic year. However, such exercise is permissible only in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30^th September of the relevant academic year. This, however, can

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only be done if the conditions stated by the Apex Court in its decision in Priya Gupta's case (supra) are found to be satisfied and the reasons therefor are recorded by the Court of competent jurisdiction.

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In the instant case, the 2^nd petitioner did not exercise or pursued her rights/legal remedies against her non-selection for MBBS Course for the academic year 2015-16, by expeditiously and promptly approaching either the 2^nd respondent Committee or this Court seeking appropriate relief to secure admission for the said course. None of the documents on record would show that the petitioners made any complaint before the 2^nd respondent Committee during the admission process for the said academic year, pointing out any irregularity or illegality in the admission. Having failed to pursue her legal right in accordance with the relevant Statute, the petitioner cannot seek an interference of this Court at this distance of time.

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As per the prospectus issued by the 4^th respondent for admission to Professional Degree Courses, 2016, the validity of medical rank list is only upto 30^th of October of that academic year. For the current academic year 2016-17, the 4^th respondent conducted Entrance Test and the admission for MBBS Course 2016-

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W.P.(C) No.24164 of 2016

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17 could be made only from the candidates included in the rank list for the year 2016. No admission can be made for MBBS Course for the current academic year from the rank list published by the 4^th respondent for the previous academic year. In that view of the matter, the 2^nd petitioner is not entitled for the reliefs sought for in the Writ Petition for admission to MBBS Course for the year 201516 or for the year 2016-17.

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In the result, this Writ Petition fails and the same is dismissed, however, without prejudice to the right of the 1^st petitioner to challenge Ext.P7 by invoking the appellate remedy available under the Right to Information Act, 2005, if he is dissatisfied with the information furnished therein.

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Sd/-

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P.R.RAMACHANDRA MENON ,

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JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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Jvt/20.7.2016

C.P.Ramachandran v. State of Kerala

Case brief

What is this about?

What did the court decide?

C.P.Ramachandran v. State of Kerala

Case brief

What is this about?

What did the court decide?

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