Dismissed

Anju Kishor T. v. the State of Kerala

Kerala HC13 Aug 2020WA/1011/2020

Case brief

AI extract

What is this about?

The Division Bench dismissed the writ appeal filed by a student seeking admission in the MBBS sports quota. The court held that the appeal was barred by res judicata, as the issues were settled in a previous writ petition dismissed by the Single Judge and affirmed by the Supreme Court in related civil appeals. The omission of facts in the first petition prevented a second chance. The writ appeal w

What did the court decide?

The writ appeal is dismissed. The appellant is not entitled to admission under the sports quota for the academic year 2019-2020.

Anju Kishor T. Vs the State of Kerala — Education and Admissions | Kerala HC (2020)

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'CR'

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 13TH DAY OF AUGUST 2020 / 22ND SRAVANA, 1942

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WA.No.1011 OF 2020

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AGAINST THE JUDGMENT DATED 29.05.2020 IN WP(C) 21685/2019(I) OF HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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ANJU KISHOR T. AGED 18 YEARS D/O. DR. KISHOR KUMAR T.R., THARAYIL HOUSE, MOOTHAKUNNAM P.O., NORTH PARAVOOR, ERNAKULAM-683 516.

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BY ADV. SRI.SUNIL V.MOHAMMED

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RESPONDENT/S/RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO SPORTS AND YOUTH AFFAIRS (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE COMMISSIONER FOR ENTRANCE EXAMINATION OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATION, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.

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3 THE KERALA STATE SPORTS COUNCIL REPRESENTED BY ITS SECRETARY, STATUE ROAD, THIRUVANANTHAPURAM-695 001.

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4 THE ATYA PATIYA KERALA STATE ASSOCIATION REPRESENTED BY ITS SECRETARY, CENTRAL BANKERS, ENGAPUZLA P.O., PUTHUPAD, KOZHIKODE-673 301.

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5 ATYA PATIYA FEDERATION OF INDIA REPRESENTED BY ITS GENERAL SECRETARY, C/O. NAGPUR SHARIRIK SHIKSHAN MAHAVIDYALAYA, NEAR INDIA GYMAKHANA, DR. MUNJE MARG, DHANTOLI, NAGPUR, MAHARASHTRA-440 012.

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6 ANUGRAH JYOTHY P.M. PEEDIKAKANDY HOUSE, PAYYADIMEETHAL, PANTHEERANKAVU, KOZHIKODE-673 019.

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7 ANTONY P. ALAPPAT ALAPPAT HOUSE, BEHIND GOVERNMENT HIGH SCHOOL, PUDUKAD, PUDUKAD P.O., THRISSUR-680 301.

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R3 BY SMT.LATHA ANAND, SC, KERALA STATE SPORTS COUNCIL R7 BY ADV. SRI.GEORGE POONTHOTTAM (SR.) R7 BY ADV. SMT.NISHA GEORGE SRI. SURIN GEORGE IPE, SR. GOVERNMENT PLEADER R6 BY SRI. SYAM J. SAM

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

SHAJI P. CHALY, J

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The captioned appeal is filed by the petitioner in W.P.(C) No. 21685 of 2019 challenging the judgment of the learned Single Judge dated 29.05.2020 dismissing the writ petition holding that the appellant is not entitled to get admission to MBBS course in the sports quota for the year 2019-2020 in the selection conducted on the basis of the Kerala Engineering Architecture Medical Entrance Examination (KEAM), 2019.

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The learned Single Judge, after considering the issues raised by the rival parties, including the students who have secured admission in the sports quota, has held that the court would not be justified in embarking on an exercise of verification of the certificates produced by respondents 6 and 7, who have secured admission for the course, in an attempt to find out whether they are in accordance with the requirements of the prospectus. It was also found that a batch of writ petitions challenging the provisions of eligibility had already been decided by this Court along with W.P.(C) No. 18203 of 2019 filed by the appellant herself and in the light of the judgment in the said writ petition filed by the appellant, the issue has attained finality. It was

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also found that though appeals were preferred by other aggrieved parties against the common judgment before the Division Bench of this Court and later before the Apex Court, the issue also stands settled by the decision of the Apex Court in Civil Appeal Nos. 7025 and 7026 of 2019. It is thus challenging the validity and correctness of the said judgment, this appeal is preferred.

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Brief material facts for the disposal of the writ appeal are as follows:

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The writ petition was filed challenging the eligibility of respondents 6 and 7 i.e. one Anugrah and Antony P Aiappat, who have secured admission in the sports quota, and the genuineness of the proficiency claimed by them for admission under sports quota for Medical Courses – 2019. As per Ext.P1 prospectus, for admission to KEAM, altogether 9 seats i.e., 7 seats for MBBS and two seats for BDS were reserved for admission under sports quota for the year 2019. As per Ext.P1, the last date of submission of online application for admission, including admission to sports quota, was on 28.02.2019 at 5 p.m., which was subsequently extended to 04.03.2019 vide the order of the second respondent. Therefore, according to the appellant, the online application had to be submitted before the aforesaid cut off

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date, and the proficiency in sports obtained as on 04.03.2019 alone should have been considered for priority and admission under sports quota. The Kerala State Sports Council, the third respondent, was the authority to prepare the priority list with grace marks of candidates for admission under sports quota as per Ext.P1, which was to be forwarded to the Commissioner of Entrance Examination, the second respondent, to prepare the merit wise rank list for admission under the sports quota based on the priority and grace marks awarded by the Kerala State Sports Council and the marks obtained in the entrance examination. It was accordingly that the Kerala State Sports Council forwarded the list to the Commissioner of Entrance Examinations, who has finalised the list of the sports quota on the basis of the list forwarded by the Kerala State Sports Council.

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The appellant was one of the applicants for admission under the sports quota for Medical Courses -2019. Her proficiency in the sports event 'Ball Badminton' is put forth by her on account of Exts.P3 to P6 certificates in Ext.P17 draft eligibility list prepared. As per Ext.P16, guidelines were published by the third respondent to prepare the select list, and the appellant was included as serial No. 21 with 58 marks presumably based on the proficiency claimed by her as on

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04.03.2019 as per Exts.P3 to P6. Respondents 6 and 7 have submitted their proficiency in the sports event 'Atya Patya' and they were placed as serial Nos. 56 and 11 with 50 and 60 marks respectively, evident from Ext.P17 draft eligibility list. Thereafter, Ext.P18 final eligibility list was published and the 7^th respondent was placed as serial No. 1 with 76 marks and according to the appellant, there was no suspicion at that point of time as the appellant was unaware of his proficiency details to cross check it with Ext.P16 eligibility guidelines. Thereafter, upon enquiry from various authorities and from the particulars and documents made available in the website of the Atya Patya Federation of India, the 5^th respondent, appellant decided to verify the genuineness of the 7^th respondent's proficiency and to enquire as to under what circumstances he was awarded with 76 marks to place him as serial No.1 in Ext.P18 final eligibility list. Various other contentions were raised by the appellant to canvas that the admissions made to the MBBS course in the sports quota is not in terms of Ext.P1 prospectus and Ext.P16 eligibility guidelines issued for the purpose of preparing the select list.

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In fact, counter affidavit was filed by the Atya Patya Federation in the writ petition refuting the allegations raised against it,

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and submitted that the documents of certificates issued to the 6^th and 7^th respondents were in accordance with their participation in appropriate sports event and the certificates were issued in terms of the guidelines issued by the statutory authorities and in accordance with law.

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The 7^th respondent has also filed a detailed counter affidavit explaining the veracity of the certificate produced by her and the genuineness of the admission secured by her.

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We have heard Sri. Sunil V. Mohammed, learned counsel for the appellant, Sri. Surin George Ipe, learned Senior Government Pleader, Smt. Latha Anand for the Sports Council, Sri. Syam J Sam for the 6^th respondent, Sri. Navaneetha Krishnan for the 7^th respondent and the learned counsel appearing for the other respondents, and perused the pleadings and documents on record.

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The sole question that arises for consideration is whether there is any legal infirmity in the judgment of the learned Single Judge in dismissing the writ petition and declining the reliefs to the appellant. On an appreciation of the facts and circumstances, it is clear that there was a batch of writ petitions before this Court challenging the admission under the sports quota for year 2019-2020 in the

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aforementioned disciplines. The appellant herein has also filed W.P.(C) No. 18203 of 2019. All the writ petitions, including the one filed by the appellant, were dismissed. The appellant did not file any appeal against the common judgment in W.P.(C) No. 18203 of 2019. However, writ appeals, W.A. Nos.1757 and 1758 of 2019 preferred against the common judgment in W.P.(C) Nos. 20720 and 19257 of 2019 were dismissed, except interfering to a limited extent of reversing the findings of the learned Single Judge to consider the application under the sports quota of one of the writ petitioners in a group event in preference to the certificates produced by him in the individual event. The dismissal of the writ appeals were challenged before the Apex Court in Civil Appeal Nos. 7025 and 7026 of 2019, whereby the judgment of the Division Bench of this Court was confirmed. These are undisputed facts. The contention put forth by the appellant is that, the appellant could not take up all the contentions in the previous writ petition filed by him and consequently suffered dismissal, and therefore, he was entitled as of right to prefer a second writ petition incorporating all legal grounds on assimilation of other fact situations at a later point of time.

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Now, with these facts, the primary questions emerging are,

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is not the second writ petition filed by the appellant hit by the principles of res judicata, constructive res judicata and the principles of Order 11 Rule 2 CPC?, which were questions raised by the 7^th respondent in the counter affidavit. The learned Single Judge also considered the said questions along with the merits of the case, though specific provisions are not referred to in the judgment, and has arrived at the finding that the appellant has not preferred any appeal against the dismissal of W.P.(C) No.18203 of 2019, and the present attempt is only to re-agitate the issue of eligibility, and if such disputes were bona fide , it ought to have been raised at the time of filing of W.P.(C) No. 18203 of 2019. It was also found that the attempt of the petitioners was only to rake up matters which have been given a quietus by this Court as well as the Apex Court after considering all relevant aspects and therefore, is only an abuse of process of court. That apart, the veracity of the certificates produced by respondents 6 and 7 were taken into account and has found them also to be genuine , competent and true, entitled to be considered for admission in the sports quota for the MBBS course, 2019-2020.

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We have evaluated the rival submissions made across the Bar. It is an admitted fact that the appellant has not filed any appeal

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against the judgment in WP(C) No. 18203/2019 which was filed also challenging the sports quota admission and therefore, the issues raised by the appellant have concluded there. Circumstances being so, in our view, the judgment rendered therein forms as res judicata disabling the appellant from filing any further writ petition. As discussed above, the contention raised by the appellant is that when the earlier writ petition was filed, the appellant was not aware of the veracity of the true factual circumstances which disabled the appellant to incorporate those facts in the writ petition and if those facts were incorporated, the appellant had a fair chance of succeeding in the writ petition. In our considered view, there is no case for the appellant that those facts were not available at all when the first writ petition was filed before this Court. The appellant herself submits that she has filed the earlier writ petition without understanding true facts.

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By now , it is trite and a well settled legal position that, in writ petitions also, the principles of Order II Rule 2 of the Code of Civil Procedure would apply and therefore, all the facts and circumstances that were available on the date of filing of the writ petition ought to have been included by the appellant in the earlier writ petition. The purpose of Order 11 CPC itself is to attain finality upon the subjects in

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dispute and to prevent further litigation concerning them. Further Rule 2 thereunder unequivocally stipulates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but of course with liberty to relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Which thus means, all the claims shall be raised in a single suit subject to the sole liberty provided thereunder. However, if the plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not be entitled to sue in respect of the portion omitted or relinquished since it is prohibited under sub -Rule 2 of Rule 2. This is exactly the fact situation available in the case at hand. Therefore, having not done the necessary requirements under law, the appellant was not entitled to incorporate new facts and file a second writ petition. Secondly, even going by the facts put forth by the appellant, the second writ petition filed by the appellant is hit by, the principles of res judicata since the judgment in the earlier writ petition binds her, and also the principles of constructive res judicata, since the appellant admits that all the facts which were available were not incorporated in the earlier writ petition on the basis of the might and ought rule propounded in the explanation IV to Section 11 of the

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Code of Civil Procedure, which could be clearly gathered from the provisions of Section 11 CPC. Therefore, applying the principles of might and ought rule, the issues raised in the instant writ petition can only be deemed to have been a matter directly and substantially in issue in the earlier writ petition. That apart, the issue raised by the appellant in respect of the sports quota admissions for the year 20192020 were considered by a Division Bench of this Court in the writ appeals filed by other aggrieved persons specified above, in which the judgment of the single Judge was affirmed. Though appeals were preferred on securing leave, before the Apex Court, they were also dismissed. Therefore the judgment of the Division Bench of this Court merged in the judgment of the Apex Court, is a binding precedent on the issue and the appellant is not entitled to rake up the issues once and for all settled, by filing another writ petition with new facts and circumstances.

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Even though the legal position is well settled, we are of the opinion that a reference to a few of the judgments of the Apex Court relevant to the context would make the situation more vivid and help us to arrive at a logical conclusion. In Devilal Modi v. Sales Tax Officer, Ratlam and ors [AIR 1965 SC 1150], wherein the question

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of constructive res judicata was considered on the basis of the filing of a second writ petition challenging the penalty imposed along with the tax assessed at a later point of time, and it was held that the result of the decision of the Apex Court in the earlier appeal brought by the appellant before it, was clear and unambiguous, that the appellant failed to challenge the validity of the impugned order which had been passed by the Assistant Commissioner against him, and held that considerations of public policy and the principle of the finality of judgments are important constituents of the rule of law and they cannot be allowed to be violated just because a citizen contends that his fundamental rights have been contravened by an impugned order and wants liberty to agitate the question about its validity by filing one writ petition after another. It was also held thereunder that the reconsideration of the issue which was finalised is against the public policy on which res judicata is based and would mean harassment and hardship to the opponent and besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected.

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In Direct Recruit Class II Engg. Officers' Assn. v.

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State of Maharashtra [(1990) 2 SCC 715], the Apex Court had

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occasion to consider the issue of res judicata vis-a-vis the seniority in service, wherein, after elaborate survey of the earlier judgments rendered by the Apex Court, it was held that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. In M. Nagabhushana v. State of Karnataka and ors [(2011) 3 SCC 408, it was held by the Apex Court in paragraphs 11 to 14 as follows:

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“11. We find that disregarding the aforesaid clear finding of this Court, the appellant, on identical issues, further filed a new writ petition out of which the present appeal arises. That writ petition, as noted above, was rejected both by the learned Single Judge and by the Division Bench in clear terms.It is obvious that such a litigative adventure by the present appellant is clearly against the principles of res Judicata as well as principles of Constructive res Judicata and principles analogous thereto.

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12.The principles of res Judicata are of universal application as they are based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is

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in the interest of the State that there should be an end to litigation and the other principle is `nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should forever set the controversy at rest.

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That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res Judicata is not a technical doctrine but a fundamental principle which sustains the rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.

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Justice Tek Chand delivering the unanimous Full Bench decision in Lachhmi v. Bhulli [ILR (1927) 8 Lah 384] traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows: (ILR pp.391-92)

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"In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is "a plea by former

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judgment" and in verse 10, Katyayana is quoted as laying down that "one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of purva nyaya or former judgment" (Macnaughten and Colebrooke's translation, page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya-Sagar Edn., page 77) base the defence of prang nyaya (former decision) on the following text of the ancient law- giver Harita, who is believed by some Orientalists to have flourished in the 9th Century BC and whose Smriti is now extant only in fragments:-

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"The plaintiff should be non-suited if the defendant avers: `in this very affair, there was litigation between him and myself previously,' and it is found that the plaintiff had lost his case".

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There are texts of Prasara (Bengal Asiatic Society Edition, p. 56) and of the Mayukha (Kane's Edition, p.15) to the same effect.

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Among Muhammadan law-givers similar effect was given to the plea of "Niza-i-munfasla" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the Proetors' courts, a defendant could repel the plaintiff's claim by means of `exceptio rei judicatoe " or plea of former judgment. The subject received considerable attention at the hands of Roman jurists and as stated in Roby's Roman Private Law (Vol.II, p.338) the general principle recognised was that "one suit and one decision was enough for any single dispute" and that "a matter once brought to trial should not be tried except, of course, by way of appeal".”

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We have already discussed the finality of the issue on the

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basis of the writ appeals filed before this Court by other aggrieved

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students and the same has attained finality before the Division Bench of this Court and later before the Supreme Court. Therefore, the judgment of the Apex court would become a binding precedent on all concerned with respect to the issue at hand. The question with respect to the binding nature of a precedent on similar issues was considered by the Apex Court in a plethora of judgments. In Bar Council of India v. Union of India [(2012) 8 SCC 243, paragraphs 40 and 41 relevant to the context, which read thus:

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Learned counsel for the petitioner submitted that the disposal of the writ petition filed by S.N. Pandey was in limine and the order passed therein cannot be construed as a binding precedent. It was also submitted that the said decision does not declare any law under Article 141 of the Constitution since points now raised in the present matter, were neither argued nor discussed.

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41. We are not persuaded by the submission of the learned counsel for the petitioner. Although the disposal of writ petition in S.N. Pandey [(2012) 8 SCC 261] was in limine and the order is brief but the court has disposed of the same on merits. In B. Prabhakar Rao [1985 Supp SCC 432 : 1986 SCC (L&S) 49] , O. Chinnappa Reddy, J. did observe in para 22 that the dismissal in limine of a writ petition cannot possibly bar the subsequent writ petitions but at the same time he also observed that such a dismissal in limine may inhibit the discretion of the Court. V. Khalid, J. in his supplementing judgment in para 27(6) exposited the position that normally this Court would be disinclined to entertain or to hear petitions raising identical points again where

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on an earlier occasion, the matter was heard and dismissed. Not that this Court had no jurisdiction to entertain such matters, but would normally exercise its discretion against it. We are in complete agreement with the above view of V. Khalid, J. It is against public policy and well-defined principles of judicial discretion to entertain or hear petitions relating to same subjectmatter where the matter was heard and dismissed on an earlier occasion. .”

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In Government of Andhra Pradesh and ors. v. A.P.

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Jiswal and ors . [(2001) 1 SCC 748], it was held that consistency is the cornerstone of the administration of justice and it is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It was further held that it is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis , etc. and these rules and principle are based on public policy.

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In Chandra Prakash and others v. State of U.P. and another , [(2002) 4 SCC 234], it has been held that the doctrine of binding precedent is of utmost importance in the administration of our judicial system since it promotes certainty and consistency in judicial decisions, and further judicial consistency promotes confidence in the system, and therefore, there is this need for consistency in the

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enunciation of legal principles in the decisions of this Court.

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The material facts and the law discussed above would make it clear and speak in volumes that there are no reasons for interfering with the judgment of the learned single Judge. However, the appellant has a case that the appellant has secured leave from the Supreme Court on the basis of Ext.P24 order passed by the Apex Court dated 26.08.2019 presumably in the civil appeals specified above to the effect that the High Court is not precluded from deciding all other issues except the issue raised by the parties in the special leave petitions. However, that will not come to the rescue and benefit of the appellant since the issue that was considered by a Division Bench of this Court as well as the appellate court was in regard to the admission in sports quota to the MBBS course for the year 2019-2020, and the appellant's case could not have been considered independently of the issues raised by the other writ petitioners vis-a-vis the admission given to respondents 6 and 7, in the sports quota . Therefore, what is left open by the Apex Court is only any issues that are not raised by the parties in the special leave petitions preferred before the Apex Court. Moreover, on going through Ext.P24 interim order passed by the Apex Court, we are of the view that the said interim order was

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passed during the pendency of the special leave petitions leading to the civil appeals specified above and on dismissal of the civil appeals, the said interim order cannot have any independent existence, apart from the findings contained in the judgment in civil appeals. Therefore, there is no basis for the contention advanced by the appellant that the appellant is entitled for consideration of the cases projected by her independently so as to establish that she was, as of right, entitled to get admission in sports quota during the academic year 2019-2020 in order to have the benefit of the judgment rendered by the Apex Court in Krishna Sradha S v. State of Andhra Pradesh and others [2020 (1) KHC 633], wherein the Apex Court had issued certain directions, to provide a seat to the appellant thereon, on account of the admission provided by a private management overlooking the merit of another candidate, in the ensuing year.

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In our considered opinion, since the issues raised by the appellant was settled in her own writ petition, and by the judgment of the Apex Court, the issue of admission to MBBS course in the sports quota for the year 2019-2020 is a closed chapter unable to be resurrected.

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Therefore, judging from any angle, the appellant is not entitled to succeed in the writ appeal. Needless to say, the writ appeal fails

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and accordingly it is dismissed.

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sd/- S. MANIKUMAR, CHIEF JUSTICE.

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sd/SHAJI P. CHALY, JUDGE.