Dismissed

Surya Shaji v. Gauri Sajit

Kerala HC22 Dec 2022WA/1956/2022

Case brief

AI extract

What is this about?

Writ appeals by third-party candidates against a single judge order barring students who had already joined MBBS seats in the first and second rounds of State quota counselling from participating in mop-up counselling. The High Court upheld the bar, holding that the Medical Council of India notification and the Supreme Court's directions prohibit such participation.

What the court decided

AI extract

Surya Shaji Vs Gauri Sajit — Education and Admissions | Kerala HC (2022)

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W.A. No. 1953/2022 & batch

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: 1:

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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 22^ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944

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WA NO. 1953 OF 2022

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JUDGMENT DATED 13.12.2022 IN WP(C) 40010/2022 OF HIGH COURT OF

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KERALA

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APPELLANT/S:

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ADITHYA NAIR AGED 18 YEARS SON OF DR.PRIYA RENJINI S PRADEEP., CC 55-1636B, VRINDAVANAM, THOTTUNGATHARA ROAD, KADAVANTHARA, KOCHI, ERNAKULAM, PIN – 682 020. BY ADVS. K.P.PRADEEP SANAND RAMAKRISHNAN HAREESH M.R. T.T.BIJU T.THASMI M.J.ANOOPA SANU S MALAKEEL

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RESPONDENTS/WRIT PETITIONER IN WPC & RESPONDENTS IN WPC:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.

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2 GAURI SAJIT AGED 18 YEARS

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S.V. NAGAR 110, NEAR S.V. LIBRARY, PULIYATHUMUKKU, AYATHIL P.O., KOLLAM, PIN – 691 021.

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3 THE DIRECTOR OF MEDICAL EDUCATION, OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN – 695 011.

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4 THE COMMISSIONER FOR ENTRANCE EXAMINATION, OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATION, 5TH FLOOR, KSHB BUILDING, SS KOVIL ROAD, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN – 695 001.

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5 UNION OF INDIA

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W.A. No. 1953/2022 & batch : 2:

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DIRECTORATE GENERAL OF HEALTH SERVICES, THE MEDICAL COUNSELING COMMITTEE THROUGH OFFICE OF ADG (ME), NIRMAN BHAVAN, CENTRAL SECRETARIAT, NEW DELHI, PIN – 110 108.

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6 THE NATIONAL MEDICAL COMMISSION, THROUGH ITS CHAIRPERSON, DADA DEV MANDIR ROAD, DWARAKA, NEW DELHI, PIN – 110 077. BY ADV. SRI. TEK CHAND, SR. GOVERNMENT PLEADER R2 BY SRI. ARAVINDA KUMAR BABU T.K R6 BY SRI. TITUS MANI VETTOM SRI. JAI SHANKAR V. NAIR, CGC

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.12.2022, ALONG WITH WA. Nos. 1956, 1957 & 1958 of 2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 1953/2022 & batch

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: 3:

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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 22^ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944

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WA NO. 1956 OF 2022

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JUDGMENT DATED 13.12.2022 IN WP(C) 40010/2022 OF HIGH COURT OF

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KERALA

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APPELLANT/3RD PARTY:

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SURYA SHAJI AGED 19 YEARS D/O. SHAJI VISWAMBHARAN, VARIAM VEEDU, MLA ROAD, PALLURUTHY, KOCHI, ERNAKULAM DISTRICT, PIN – 682 006. BY ADVS. BENOY THOMAS PAULSON THOMAS

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RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 5 IN W.P.©:

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1 GAURI SAJIT AGED 18 YEARS S.V. NAGAR 110, NEAR S.V. LIBRARY, PULIYATHUMUKKU, AYATHIL P.O., KOLLAM PIN – 691 021. 2 STATE OF KERALA REPRESENTED BY ITS THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN – 695 011. 3 THE DIRECTOR OF MEDICAL EDUCATION OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM PIN – 695 011.

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W.A. No. 1953/2022 & batch : 4:

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4 THE COMMISSIONER FOR ENTRANCE COMMISSION OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATION, 5TH FLOOR, KSHB BUILDING, SS KOVIL ROAD, SANTHI NAGAR, THIRUVANANTHAPURAM PIN – 695 001. 5 UNION OF INDIA, DIRECTORATE GENERAL OF HEALTH SERVICES, THE MEDICAL COUNSELING COMMITTEE THROUGH OFFICE OF ADG (ME), NIRMAN BHAVAN, CENTRAL SECRETARIAT, NEW DELHI, PIN – 110 108. 6 THE NATIONAL MEDICAL COMMISSION THROUGH ITS CHAIRPERSON DADA DEV MANDIR ROAD, DWARAKA, NEW DELHI, PIN – 110 077. BY ADVS. BY ADV. SRI. TEK CHAND, SR. GOVERNMENT PLEADER R1 BY SRI. ARAVINDA KUMAR BABU T.K R6 BY SRI. TITUS MANI VETTOM SRI. JAI SHANKAR V. NAIR, CGC

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.12.2022, ALONG WITH WA.1953/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 1953/2022 & batch

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: 5:

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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 22^ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944

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WA NO. 1957 OF 2022

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AGAINST THE JUDGMENT IN WP(C) 40010/2022 OF HIGH COURT OF KERALA

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APPELLANT/3RD PARTY:

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RAFEEDA M. RAZAK AGED 20 YEARS D/O.RAZAK, MULLAN MADAKAL HOUSE, VALLITHODE, KILIYANTHARA P.O KANNUR., PIN – 670 708. BY ADVS. P.K.IBRAHIM SREEJI K.B.

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RESPONDENTS/PETITIONER/RESPONDENTS:

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1 GAURI SAJITH AGED 18 YEARS S.V. NAGAR 110, NEAR S.V. LIBRARY, PULIYATHUMUKKU, AYATHIL P.O., KOLLAM. PIN – 691 021.

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2 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM., PIN – 695 001.

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3 THE DIRECTOR OF MEDICAL EDUCATION, OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM., PIN – 691 011.

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4 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, 5TH FLOOR, KSHB BUILDING SS KOVIL ROAD, SANTHINAGAR THIRUVANANTHAPURAM. PIN – 695 001.

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5 UNION OF INDIA DIRECTORATE GENERAL OF HEALTH SERVICES,

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W.A. No. 1953/2022 & batch : 6:

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THE MEDICAL COUNSELLING COMMITTEE, THROUGH OFFICE OF ADG (ME), NIRMAN BHAVAN, CENTRAL SECRETARIAT, NEW DELHI. PIN – 110 108. 6 THE NATIONAL MEDICAL COMMISSION THROUGH ITS CHAIRPERSON, DADA DEV MANDIR ROAD, DWARAKA, NEW DELHI. PIN – 110 077. BY ADVS. BY ADV. SRI. TEK CHAND, SR. GOVERNMENT PLEADER R1 BY SRI. ARAVINDA KUMAR BABU T.K R6 BY SRI. TITUS MANI VETTOM SRI. JAI SHANKAR V. NAIR, CGC

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.12.2022, ALONG WITH WA.1953/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 1953/2022 & batch

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: 7:

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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 22^ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944

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WA NO. 1978 OF 2022

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JUDGMENT DATED 13.12.2022 IN WP(C) 40010/2022 OF HIGH COURT OF

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KERALA

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APPELLANTS/NOT PARTIES TO THE WRIT PETITION:

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1 AABHA HANAN AGED 19 YEARS D/O. ABDUL JABBAR PUTHENVEETIL HOUSE,VELANS ROAD HOUSE NO 20. KANIMANGALM PO KOORKENCHERY THRISSUR. PIN – 680 007.

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2 ABHISREE DEEPAK AGED 22 YEARS D/O. GANESAN, VILLYADATH HOUSE POOCHERIKUNNU, MANNUR (PO) CALICUT PIN – 673 328.

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3 ASHHAD MOHAMMED.S. AGED 19 YEARS, S/O. M.SHABEER AHAMMED, A2C, PINE COUNTY KAMAL NAGAR OPP. IOC PUMP,MANNANTHALA, THIRUVANANTHAPURAM, PIN – 695 015.

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4 FATHIMA BINDIYA. P AGED 20 YEARS PULLATTIL HOUSE KADAMPUZHA(P.O). MALAPPURAM PIN – 676 553.

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5 RAFA SHAMEEM AGED 20 YEARS MALIAKKAL HOUSE, RANDAL ANANTHAVOOR(P.O), MALAPPURAM, KERALA-676 301.

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6 MALAVIKA P.R., D/O. P.R. PRAVEEN KUMAR,

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W.A. No. 1953/2022 & batch : 8:

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AGED 20 YEARS SVLRA MR 57, AMBALAMUKKU, KOWDIAR, TRIVANDRUM, PIN : 695 003. 7 ANZEERA FEBIN K AGED 18 YEARS D/O. KADIR AHAMMED, MEHAR MANZIL, NEAR WMO SCHOOL,SULTAN BATHERY, WAYANAD, PIN – 673 592. 8 HADHI ARIF N.K., AGED 18 YEARS D/O. ARIF, NANGEELAM KANDIYIL (H) KUTTIADI (P.O) CALICUT, PIN : 673 508.

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9 ALISAGAR ALISAGAR, BUNGLAWU VILLA, AGED 19, S/O. SHAJI.B., PADINJATTAM KIZHAKKU SOORNAD (P.O), KOLLAM, PIN – 690 522. 10 SANCY JOHN AGED 19 YEARS D/O. JOHN, PUTHUR HOUSE, PANENGADAN STREET, PARAPPUR, THRISSUR, KERALA- 680 552.

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11 MARIA DENNIS AGED 18 YEARS D/O. DENNIS JOSEPH, ANATTY OLAKKENGIL HOUSE, PUTHUMANASSERY, PAVARATTY (P.O), THRISSUR- 680 507. 12 NADA AFRAH O., AGED 19 YEARS D/O. SHOUKATHALI.O., OTTATHINGAL HOUSE, KAKKAD (P.O), TIRURANGADI, MALAPPURAM- 676 306.

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BY ADV V.A.HARITHA SRI. DEEPAK PRAKASH

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RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 5:

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1 GOURI SAJIT. S.V.NAGAR 110, NEAR S.V.LIBRARY, PULIYATHUMUKU, AYATHIL (P.O), KOLLAM- 691 021.

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2 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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W.A. No. 1953/2022 & batch : 9:

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3 THE DIRECTOR OF MEDICAL EDUCATION, OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE (P.O), THIRUVANANTHAPURAM- 695 011.

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4 THE COMMISSIONER FOR ENTRANCE EXAMINATION, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATION, 5TH FLOOR, KSHB BUILDING, SS KOVIL ROAD, SANTHI NAGAR, THIRUVANANTHAPURAM- 695 011.

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5 UNION OF INDIA, DIRECTORATE GENERAL OF HEALTH SERVICES, THE MEDICAL COUNSELLING COMMITTEE. THROUGH OFFICE OF ADG (ME), NIRMAN BHAVAN, CENTRAL SECRETARIAT, NEW DELHI-110 108.

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6 THE NATIONAL MEDICAL COMMISSION, THROUGH ITS CHAIRPERSON, DADA DEV MANDIR ROAD, DWARAKA NEW DELHI- 110 077.

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BY ADV BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER R6 BY SRI. TITUS MANI VETTOM SRI. JAI SHANKAR V. NAIR, CGC

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.12.2022, ALONG WITH WA.1953/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No. 1953/2022 & batch

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: 10:

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Dated this the 22^nd day of December, 2022.

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JUDGMENT

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[WA Nos.1953/2022, 1956/2022, 1957/2022, 1978/2022]

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SHAJI P. CHALY, J.

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The appeals are preferred by third parties to the judgment dated 13.12.2022 in W.P.(C) No. 40010 of 2022, after securing leave from this Court.

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The party respondent in the appeals has filed the writ petition seeking a writ of certiorari to quash the conditions contained in Exhibit P2 guidelines issued by the office of the Commissioner for Entrance Examinations, Government of Kerala, Thiruvananthapuram, for mop-up counselling which permits participation of already admitted students in MBBS seats in the first and second allotment in the State quota; to declare that in the light of Exhibit P3 order of the Apex Court in C.O.(C) No. 289 of 2022 in Writ Petition (Civil) No. 223 of 2022 dated 22.07.2022, and Exhibit P4 notice issued by the Director General of Health Services, Government of India dated 12.07.2022 directing all Participating States/Counseling authorities and candidates, that in compliance with the directions of the Hon’ble Supreme Court of India, vide order dated 31.03.2022 in W.P.(C) No. 174 of 2022, Medical Counseling Committee of DGHS, Ministry of Health and Family

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W.A. No. 1953/2022 & batch : 11:

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Welfare has developed a software for all the participating States/counseling authorities for NEET-UG/PG to upload the names and roll numbers of the students who have joined upto round 2 of All India Quota on the common portal; and that those joined candidates upto round 2 of All India Quota, shall not be eligible to participate in the further rounds for All India Quota or for State Quota from the academic year 2022-23 onwards, insofar as it permits the college to transfer all students who are already allotted and admitted in various medical colleges, the guidelines issued by the Commissioner for Entrance Examinations as inoperative and non-enforceable; and for a writ of mandamus commanding and compelling the Commissioner for Entrance Commissions, Thiruvananthapuram, to conduct mop-up counseling only in terms of Exhibits P3 and P4 specified above.

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The basic contention advanced by the first respondent/writ petition is that she is included in the State Medical rank with rank No.1677 with the reservation benefit of Ezhava. She has not opted for newly started Government colleges and self financing colleges. According to the petitioner, the reason for non-option was that if a candidate has exercised his/her option and allotted a seat or if he/she has not joined on the allotted seat, he/she will lose their chance to participate in the mop-up counselling. It is the case of

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W.A. No. 1953/2022 & batch : 12:

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the petitioner that, that was the condition followed hitherto; but contrary to that, Exhibit P2 was issued by the Commissioner for Entrance Examinations, Thiruvananthapuram by permitting the already allotted candidates in the first and second allotment to participate in the mop-up counselling for the academic year 20222023. Therefore, the sum and substance of the contention is that the guidelines issued by the State Government are contrary to the directions of the Apex Court in Exhibit P3 order and the directions issued by the Directorate General of Health Services, Government of India in Exhibit P4 dated 13.07.2022.

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The learned single Judge, after taking into consideration the directions issued in Exhibit P3 order of the Hon’ble Supreme Court and clause 11.6.9 of the prospectus issued by the State Government for admission to professional degree courses published by the Commissioner for Entrance Examinations, has arrived at the following conclusions:

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“5. Having heard the learned counsel on either side and having carefully scrutinized the documents and being bound by the direction issued by the Hon'ble Supreme Court, I find considerable force in the arguments advanced by the learned counsel for the petitioner. As rightly pointed out, the Medical Council of India Regulations on Graduate Medical Education, 1997 clearly indicates that candidates who have joined for seats under the All India Quota and State Quota cannot appear for further counselling. This aspect has been highlighted in Ext.P4 notification

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W.A. No. 1953/2022 & batch

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: 13:

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issued by the Directorate General of Health Services also. After taking note of Ext.P4 notification, the Apex Court directed all State Counseling Authorities in the NEET-UG/PG to scrupulously comply with the directions from the academic year 2022 - 23 onwards. In such circumstances, the third respondent cannot contend that the candidates who have already joined during the first and second rounds of allotment are only provided with an opportunity to obtain transfer to the higher option exercised by them. For that also those candidates will have to be allowed to participate in the mop up allotment. In view of the Regulations, Ext.P4 notice and the direction in Ext. P3 order, such permission cannot be granted.

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For the aforementioned reasons, the third respondent is directed not to permit the students who have already secured admission and joined in the first and second round of allotment to participate in the mop up counselling. The writ petition is disposed of with the above direction.”

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It is thus, challenging the legality and correctness of the judgment of the learned single Judge, the appeals are preferred.

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The contentions raised in the writ appeals are basically common and therefore, separate narration of facts are not required.

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To put it short, the appellants were allotted seats in various Medical Colleges. However, due to the judgment rendered by the learned single Judge, they are unable to participate in the mop-up counselling; and according to them, the judgment of the learned single Judge would seriously affect their career, since they

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W.A. No. 1953/2022 & batch : 14:

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have got higher rank, to seek option in better Medical Colleges, including the Medical Colleges in the public sector. The appellants have also relied upon various orders of the Apex Court which are produced as Annexures along with the writ appeals and submit that the directions contained in the orders of the Apex Court in regard to mop-up counselling would only apply to the All India Quota earmarked by the respective States.

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Therefore, it is contended that the judgment of the learned single Judge issuing directions to comply with the directions contained in the order of the Apex Court and the directions issued by the Ministry of Health and Family Welfare Department, Government of India, cannot be sustained under law. It is further submitted that the revised notification issued by the State Government dated 13.12.2022 revising guidelines for mop-up counselling on the basis of the judgment of the learned single Judge is arbitrary and illegal.

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It is further pointed out that the consequence of denying the benefit of mop-up allotment to the candidates who have been allotted seats in the second phase is that those who are lower in rank get seats in Government Medical Colleges and other colleges with better hospital facilities than the students with better ranking performance. It is also pointed out that the purpose of mop-up

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W.A. No. 1953/2022 & batch : 15:

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allotment is to ensure seats to candidates having higher merit in the colleges of their choice and therefore, denying such opportunity will result in students lower in merit get seats allotted in Government colleges/other prestigious colleges, while meritorious students get admission in institutions comparatively having lower infrastructure facilities. It is further contended that the appellants are now compelled to pay huge fees in Self Financing Medical Colleges where seats are allotted to them and the students with less merit would be enjoying the facility for the payment of less fees in the Government Medical Colleges.

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It is also contended that the learned single Judge has misconceived the order of the Hon’ble Supreme Court resulting in the judgment impugned and therefore, interference is required to the same. On the other hand, the learned counsel appearing for the writ petitioner submitted that the learned single Judge has passed the order, bearing in mind the amendment notification issued by the Medical Council of India dated 18.05.2018, whereby a student who had the opportunity for making two options in accordance with the counselling conducted in the State Quota, are ineligible for further counselling in the Mop-up and deemed Mop-up.

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It is further pointed out that it was taking note of the orders passed by the Apex Court that the Medical Commission of

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W.A. No. 1953/2022 & batch : 16:

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India has issued the directives to the State authorities not to permit the students who have availed two options in the counselling conducted to participate in the mop-up counselling. It is further pointed out that on the basis of the notification issued by the Medical Commission of India alone, the Medical Commission of India has issued necessary directives to the State Government as to the manner in which the counselling has to be conducted.

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The learned counsel for the writ petitioner has also invited our attention to Annexure A8 order dated 31.03.2022 in Writ Petition (Civil) No. 174 of 2022 passed by the Hon’ble Supreme Court and submitted that such an order was passed facilitating completion of counselling process for the NEET-PG 2021-2022 alone and invoking the power conferred under Article 142 of the Constitution of India to resolve the imbroglio which has arisen due to the anomalies which were noticed in the order of the Apex Court dated 30.03.2022. It is also pointed out that in the said order, it is clearly mentioned that it would apply to mop-up rounds for All India Quota seats alone and it is specifically mentioned therein; and it was directed therein that the authorities shall adhere to the guidelines notified by the Medical Council on 05.04.2018 in respect of the ineligibility of the students to participate in the mop-up counselling, who have joined in round 2 of the State quota.

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W.A. No. 1953/2022 & batch : 17:

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We have heard the learned counsel for the appellants Sri. P.K. Ibrahim, Sri. Binoy Thomas, Smt. V.A Haritha and Sri. Hareesh M.R for the appellants, Sri. Aravinda Kumar Babu T.K for the first respondent/writ petitioner, Sri. Jaishankar V. Nair, CGC, Sri. Titus Mani Vettom for the National Medical Commission and the learned Senior Government Pleader Sri. Tek Chand, and perused the pleadings and material on record.

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Respective counsel have addressed arguments on the basis of the deliberations made above. The issue basically revolves around the amendment notification issued by the Medical Commission of India (formerly Medical Council of India) dated 18.05.2018, and it reads thus:

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“ MEDICAL COUNCIL OF INDIA AMENDMENT NOTIFICATION New Delhi, the 18th May, 2018

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No.MCI-34(41)/2018-Med./109835.— In exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India with the previous sanction of the Central Government hereby makes the following Regulations to further amend the “Regulations on Graduate Medical Education, 1997”, namely: -

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(i) These Regulations may be called the “Regulations on Graduate Medical Education (Amendment), 2018.

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(ii) They shall come into force from the date of their publication in the Official Gazette.

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In the “Regulations on Graduate Medical Education, 1997”, following

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W.A. No. 1953/2022 & batch

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: 18:

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clause shall be added after 5A(3):-

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5A(4) – In order to prevent seat blocking in common counseling for admission to MBBS course and permissibility to exercise fresh choice during counseling, forfeiture of fee shall be in accordance with the Matrix contained in “Appendix – F”.

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In the “Regulations on Graduate Medical Education, 1997”, in Appendix ‘F’

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the following “Note” shall be added below the Time Schedule for completion of the admission process for first MBBS course for the academic year 2018-19 and onwards: -

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Note:

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All India Quota Seats (15%) remaining vacant after last date for joining, i.e. 22nd July of the present Admission year will be deemed to be converted into State quota.

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Institute/college/courses permitted after 31st May will not be considered for admission/ allotment of seats for current academic year.

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In any circumstances, last date for admission/joining will not be extended after 31st August.

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For the purpose of ensuring faithful obedience to the above timeschedule, Saturday, Sunday or Holidays (except National Holiday on account of Independence Day, 15th August) shall be treated as working days.

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The following Matrix shall be applicable with regard to permissibility to students to exercise fresh choice during counseling:-

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Sl.	Round	Free	Exit with	Ineligible	Amount of registration fee
No. 1	AIQI/Deemed	Exist	forfeiture of fees	for further counselling

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W.A. No. 1953/2022 & batch

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: 19:

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2	AIQII/Deemed	if not joined	if joined	Government -Rs,10,000 (half for SC/ST/OBC)Deemed - Rs.2,00,000/-
3	State Quota I
4	State Quota II	if not joined	if joined	Government-Rs.10,000/- (half for SC/ST/OBC) Private - Rs.1,00,000/-
5	State Quota Mop-up		if joined
6	Deemed Mop- up		if joined

¶154

As per MCI regulations, DGHS counseling would include AIQ seats, Central Institutions and Deemed Universities. State/UT counseling would include State Quota seats and all private colleges in the States/UTs.

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DR. REENA NAYYAR, Secy. ( I/c) [ADVT-III/4/Exty./66/18-19]”

¶156

On a perusal of the said notification, it is clear that after

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the second round of State quota, the candidates are ineligible for further counselling in the mop-up rounds. However, the State Government has issued a notification dated 07.12.2022 as per the entrance examination conducted by it for mop-up counselling in violation of the said directions issued by the Medical Council of India, which reads thus:

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“ Guidelines for Mop-up counselling

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W.A. No. 1953/2022 & batch

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: 20:

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●Candidates admitted to MBBS/BDS courses up to All India Second round counselling will not be allowed to participate in the Mop up allotment.

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Candidates admitted to MBBS/BDS course through All India Mop-up counselling will not be allowed to participate in the Mop-up Allotment.

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In the Mop-up Allotment, College/course transfer will be permitted to all students.

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If any candidate receive an allotment through Mop up allotment, their existing MBBS/BDS admission will stand cancelled and the candidate should join the newly allotted course/college.

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The seats received through Mop up allotment cannot be changed further at any instance. Those candidates who receive an allotment through mop up counsellling will not be allowed to participate in further rounds of counselling.”

¶166

So also, clauses 11.6.4, 11.6.8 and 11.6.9 of the prospectus issued by the Commissioner for Entrance Examinations, Government of Kerala for KEAM-2022, which are stated to be in violation of the amendment notification issued by the Medical Commission of India, read thus:

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11.6.4 Online Option confirmation for participating in subsequent phases of allotment:

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Candidates who are having valid options and who are willing to participate in the second allotment/subsequent allotment have to log in to his/her Option Registration Page and confirm their options by clicking the ‘Confirm’ button available in his/her Option Registration Page. Candidates can delete their unwanted options or alter the priority of existing options only after the online option

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confirmation. Online Option confirmation is mandatory before each phase of allotment for participating in that particular phase of allotment. The facility for Online Option confirmation will be made available in the website before each phase of allotment. A candidate who does not confirm the higher order options by clicking the’ Confirm’ button available in his/her Option Registration Page, his/her higher order options belonging to the course(s) included in that phase will not be available in subsequent phases also. However, his/her existing allotment shall be retained, subject to the conditions of Clauses 11.6.2 and 11.6.3.

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(i) 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 45 options in all, and if he/she is allotted his/her 34th option, all options from 35 to 45 will be removed from the option list. Since the 34th option is the allotted one, it will not be seen in the option list. Options from 1 to 33 only will remain valid and will be considered for future allotments.

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(ii) 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 cancel options in a particular stream alone. 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.

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(iii) The facility for confirmation and cancellation/ deletion/rearrangement will be available for a specified period of time as

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notified, after which the facility will be withdrawn. A candidate retaining all or any of the options after each allotment is

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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 lose the existing options in the stream to which the latest allotment belongs.

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11.6.8. Allotments as per Guidelines:

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Allotment to Engineering, Architecture, B.Pharm, MBBS/BDS, BAMS, BHMS, BSMS, BUMS courses will be regulated in conformity with the guidelines of the Central councils concerned (NMC, DCI, AICTE, Central AYUSH, PCI and CoA).

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11.6.9. Mop-Up Counseling : Commissioner for Entrance Examinations is authorized to prepare and publish detailed guidelines and conditions of the Mop-up counseling and the subsequent stray vacancy filling phases, depending on the mode of the Mop-up phase (whether online or offline). In case, the mop-up phase is to be conducted offline, there can be strict constraints on the kinds of moves from one course to another course or from one college to another college because of the time constraints on completing the allotment process. The guidelines will be drafted so as to conform to the corresponding guidelines of the central councils concerned (NMC/MCC, Central AYUSH, AICTE, PCI and CoA) as far as possible.”

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Therefore, on a close analysis of the notification issued by the Medical Commission of India and the notification/prospectus

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issued by the State Government, it is clear that the notification and the prospectus issued for mop-up counselling permitting the students who have participated in two rounds of counselling in the State quota, are quite contrary; and is violation of the notification issued by the Medical Commission of India. It is important and relevant to note that the notification issued by the Medical Commission of India is not under challenge in any of the writ appeals. Furthermore, the appellants have placed heavy reliance upon the order dated 31.03.2022 of the Apex Court in Writ Petition (Civil) No. 174 of 2022 to contend that the notification issued by the Medical Commission of India in respect of the prohibition to participate in the mop-up rounds after the counselling in the second allotment applies only to All India quota.

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On a perusal of the order of the Apex Court, what we could gather is that such an order was passed under Article 142 of the Constitution of India in order to resolve the situation arose thereunder in respect of 146 additional seats which became available after All India Quota round 2 on 16.03.2022 for NEET-PG admissions 2021-2022. In order to understand the implication of the order passed by the Apex Court, we think it is only appropriate that the order is extracted, and it reads thus:

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“ O R D E R

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1 Pursuant to the order of this Court dated 30 March 2022, the Union

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Government in the Ministry of Health and Family Welfare (Directorate General of Health Services1) has proposed to set right the anomalies which were noticed in the order.

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2 The Court has heard submissions on behalf of the Union Government by Ms Aishwarya Bhati, learned Additional Solicitor General as well as of the counsel appearing on behalf of the aspiring candidates. The candidates were represented inter alia by Mr Gopal Sankaranarayanan, Mr Sanjay Hegde, Mr Rakesh Khana, senior counsel and by Mr Shivendra Singh, counsel who has ably assisted the Court.

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3 The following directions are issued in order to facilitate the completion of the counseling process for the NEET - PG 2021-2022:

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(i) The All India Quota2 mop-up round of counseling shall stand cancelled;

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(ii) For the 146 additional seats which became available after AIQ round 2 on 16 March 2022, a fresh round of counseling shall be conducted as a special case. Students who have joined in round 2 either of the state quota or of the AIQ, will be at liberty to participate in the fresh round of counseling without any financial penalties;

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(iii) In order to facilitate the expeditious completion of the process, the DGHS shall invite options from students for the 146 new seats within twenty-four hours of the uploading of the notification and the process shall be completed within a period of seventy-two hours after the cut of for receipt of options;

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(iv) A fresh mop-up round for AIQ seats shall be conducted and an endeavour shall be made to complete the process within a period of two weeks; and

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(v) In line with the regulations which have been notified on 5 April 2018, students who have joined in round 2 of the state quota or round 2 of the AIQ shall not be eligible to participate in the mop-up round for All India Quota.

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4 The above directions have been issued in pursuance of the jurisdiction of this Court under Article 142 of the Constitution to resolve the

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imbroglio which has arisen due to the anomalies which were noticed in the order of this Court

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dated 30 March 2022.

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5 The Petitions are disposed of in the above terms.

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6 Pending applications, including the applications for intervention, if any, stand disposed of.”

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On a perusal of the said order, there is no doubt that the said order was passed by the Apex Court in order to resolve the situation that has arisen consequent to the vacant seats available after the second round of All India Quota admissions for PG Medical graduates. But, it is relevant and important to note that in the said order, the Apex Court has clearly observed that it is only with the intention of filling up the vacant All India Quota seats for NEET-PG 2021-2022 alone, the Apex Court has exercised the power conferred on it under Article 142 of the Constitution of India in order to do complete justice in so far as the particular situation is concerned, which can never be be treated as a binding precedent or proposition to be followed as if it is a law declared by the Apex Court. It is also to be noted that the Contempt Petition (Civil) No. 289 of 2022 in Writ Petition (Civil) No. 223 of 2022 dated 22.07.2022 was passed by the Apex Court taking note of the order passed on 31.03.2022 and specifically making it clear that the notice issued by the Medical Commission of India expressly clarifies

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that the candidates who have joined up to the second round of All India Quota or the State Quota shall not be eligible to participate in the further rounds of All India Quota or the State Quota from the academic year 2022-2023.

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The specific directions contained in the order dated 31.03.2022 in W.P.(C) No. 174 of 2022 and the observations contained in the order in the Contempt Petition, would make it explicit and clear that the directions issued by the Apex Court would not in any manner dilute the notification issued by the Medical Commission of India making ineligible all candidates who have participated and joined up to the second round of All India Quota or the State Quota from the academic year 2022-2023.

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It may be true that due to the prohibition contained in the notification of the Commission and the consequential directions of the Apex Court, more meritorious students would be deprived to secure admission in better Medical Colleges. But, the Apex Court, in regard to the admission made to the medical and other courses, in several judgments have observed that during the process of counselling in several rounds, there are chances of the less meritorious candidates securing admissions in more meritorious colleges with better infrastructural facilities which can only be considered as a fortuitous circumstance.

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To put it short, the learned Single Judge was right in holding that the State Government is duty-bound to follow the directions of the Apex Court and the Medical Commission of India. Even though the learned counsel makes a faint attempt for the appellants to canvass the proposition that the State has not accepted the regulations of the Medical Commission of India, we find no force in the contention, for the primary reason that there is no acceptance or adoption required, in so far as the issue on hand is relating to co-ordination and determination of standards in institutions of higher education dealt with under entry 66 of List 1 of the Seventh Schedule of the Constitution of India.

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Considering the facts and circumstances, and the law discussed above, we have no hesitation to hold that the appellants have not made out any case for interference with the judgment of the learned single Judge.

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Needless to say, writ appeals fails and accordingly, they are dismissed.

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sd/-

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S. MANIKUMAR, CHIEF JUSTICE.

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sd/-

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SHAJI P. CHALY, JUDGE.

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APPENDIX OF WA 1953/2022

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APPELLANT’S ANNEXURES:

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Annexure A1 TRUE COPY OF THE MARK LIST ISSUED BY THE BOARD OF HIGHER SECONDARY EXAMINATION, GOVERNMENT OF KERALA Annexure A2 TRUE COPY OF THE CANDIDATE DATA SHEET IN ROLL NO 102633.

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Annexure A3 TRUE COPY OF THE KEAM OPTION OF THE APPELLANT TO ADMISSION TO PROFESSIONAL DEGREE COURSES 2022.

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Annexure A4 TRUE COPY OF THE COMPUTER-GENERATED ALLOTMENT AND ADMISSION LETTER IN THE 1ST ROUND OF STATE COUNSELLING.

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Annexure A5 TRUE COPY OF THE REVISED GUIDELINES FOR MOP UP COUNSELLING DATED 13-12-2022. Annexure A6 TRUE COPY OF THE MOP UP ALLOTMENT LIST PUBLISHED ON 15-12-2022.

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RESPONDENTS’ ANNEXURES: NIL

True Copy

PS To Judge.

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APPENDIX OF WA 1956/2022

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APPELLANT’S ANNEXURES:

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Annexure-A1	TRUE COPY OF THE LIST OF NAMES WHO ARE NOT PERMITTED TO PARTICIPATE IN STATE QUOTA ALLOTMENTS DATED 14-12-2022 PUBLISHED BY THE 4TH RESPONDENT.
Annexure-A2	TRUE COPY OF THE NEET-UG SCHEDULE - 2022 PUBLISHED BY MCC DATED NIL.
Annexure-A3	TRUE COPY OF THE ADMISSION SLIP OF THE APPELLANT.
Annexure-A4	TRUE COPY OF G.O. (RT.)NO. 2550/2022/H&FWD DATED 22-10-2022 VIZ. SEAT DISTRIBUTION TABLE.
Annexure-A5	TRUE COPY OF THE LIST OF VACANT SEATS AS ON 07- 12-2022 PUBLISHED FOR R4.
Annexure-A6	TRUE COPY OF THE REVISED NOTIFICATION DATED 13-12-2022 ISSUED BY R4 PURSUANT TO THE IMPUGNED JUDGMENT.
Annexure-A7	TRUE COPY OF THE RELEVANT PORTION OF MCC UG MEDICAL COUNSELING SCHEME 20-21.
Annexure-A8	TRUE COPY OF THE RELEVANT PORTION OF INFORMATION BULLETIN AND COUNSELLING SCHEME 2022 ISSUED BY THE MCC
Annexure-A9	TRUE COPY OF THE RELEVANT PORTION OF APPENDIX-F OF MCI REGULATION ON GRADUATE MEDICAL EXAMINATION 1997 AS AMENDED UPTO MAY 2018 HEREINAFTER FOR BREVITY CALLED MCI REGULATIONS
Annexure-A10	TRUE COPY OF THE NOTIFICATION ISSUED BY THE 4TH RESPONDENT BEFORE THE 1ST ROUND OF STATE COUNSELLING DATED 26.10.2022
Annexure-A11	TRUE COPY OF THE DETAILS OF THE LAST RANK PUBLISHED IN THE 1ST PHASE ALLOTMENT TO MBBS AND BDS COURSES MADE ON 26.10.2022 BY THE 4TH RESPONDENT.
Annexure-A12	TRUE COPY OF THE NOTIFICATION ISSUED BY THE 4TH RESPONDENT DATED 23.11.2022 PERMITTING CANDIDATES ONLY TO RE-ARRANGE THEIR CHOICES MADE BEFORE THE 1ST ROUND OF COUNSELLING.
Annexure-A13	TRUE COPY OF THE REVISED NOTIFICATION DATED 13.12.2022 ISSUED BY THE 4TH RESPONDENT REVISING P2 PURSUANT TO THE IMPUGNED JUDGMENT
Annexure A14	TRUE COPY OF THE NOTIFICATION ISSUED BY THE 4TH RESPONDENT DATED 14.12.2022 PUBLISHING THE PROVISIONAL MOP-UP ALLOTMENT PURSUANT TO ANNEXURE-A3 AND THE IMPUGNED JUDGMENT.
Annexure-A15	TRUE COPY OF THE RELEVANT PAGES OF THE FINAL ALLOTMENT LIST DATED 15.12.2022 ISSUED