Sruthi Venugopal vs State Of Kerala
2021 Latest Caselaw 2847 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                      WP(C).NO.29028 OF 2020(C)


PETITIONER:

               SRUTHI VENUGOPAL
               AGED 19 YEARS
               D/O.DR.VENUGOPAL, SUSMRITHI, UDAYA NAGAR,
               9TH CROSS, AYYANTHOLE, THRISSUR-680003.

               BY ADVS.
               SRI.P.NANDAKUMAR
               SMT.AMRUTHA SANJEEV
               SHRI.VIVEK VIJAYAKUMAR
               SHRI.SREEKUMAR K.R.

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
               HEALTH AND FAMILY WELFARE DEPARTMENT,
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

      2        COMMISSIONER FOR ENTRANCE EXAMINATIONS,
               KERALA, FIFTH FLOOR, HOUSING BOARD BUILDINGS, SANTHI
               NAGAR, THIRUVANANTHAPURAM-695001.

      3        JUBILEE MISSION MEDICAL COLLEGE AND RESEARCH
               INSTITUTE,
               MAHATHMA NAGAR, NALLIKUNNU, THRISSUR-680005,
               REPRESENTED BY ITS PRINCIPAL.


OTHER PRESENT:

               SR.GP.SRI.V.MANU

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).NO.29028 OF 2020(C)

                                    2

                              P.V.ASHA J.
                      ---------------------------------
                     W.P.(C) No.29028 of 2020-C
                      ---------------------------------
                Dated this the 27th day of January, 2021

                            JUDGMENT

Petitioner challenges the denial of allotment to

Jubily Mission Medical College Trissur in the Mop up

allotment alleging that candidates lower in rank were

given admission to that College.

2. The petitioner had appeared in the National

Eligibility cum Entrance Test (NEET) UG 2020 for

admission to undergraduate medical and allied courses

and had secured All India rank of 22662 and Kerala rank

of 2863. In the first counselling conducted on

20.11.2020, she was alloted to Sree Gokulam Medical

College, Venjarammoodu - a Self Financing College, as

per Ext.P1 memo. In the second phase of counselling

and second allotment, though she continued in the same

college, the category of her admission was changed to

all India merit as per Ext.P2 memo dated 10.12.2020.

It is stated that when Ext.P3 notification was issued

on 12.12.2020 calling for fresh options against the WP(C).NO.29028 OF 2020(C)

seats remaining vacant after the second phase of

allotment, the petitioner submitted Ext.P4 list of

option. After the mop up allotment, when Ext.P6

allotment list was published on 20.12.2020, candidates

with rank Nos.2913 and 12657 were seen allotted to

Jubilee Medical Mission College in the State merit

category and in the NRI quota respectively. At the

same time, the petitioner's name was not seen included

in the list though she is rank no.2863. This Writ

Petition is filed at that stage stating that she was

entitled to be allotted to Jubilee Medical Mission

College, which was a college of her higher option, in

preference to candidates with lower rank. It is also

her contention that Sl.no.29 in Ext.P6 allotment list

with rank no.2913 was already alloted to Karuna Medical

College, Palakkad, another self financing college, in

the second allotment. Similarly, sl.no.315 in Ext.P6

with rank no.12657 was allotted to another self

financing collge - Mount Zion Medical College, Adoor.

The petitioner submits that there is no rationale in

denying her allotment in the mop up round in preference WP(C).NO.29028 OF 2020(C)

to those 2 candidates. It is her further case that she

has to pay Rs.14 lakhs towards fee at Sree Gokulam

Medical College; whereas the fee at Jubilee Medical

Mission College is only Rs.7.5 lakhs.

3. The 2nd respondent has filed a counter

affidavit. In answer to the contentions relating to the

admissions granted to rank nos. 2913 and 12657 in

Ground B of the Writ Petition, it is stated as follows

in para.12:

"The candidates with rank No.2913 (Application No.1163576) and 12657 (Application No.1133697) were allotted to Karuna Medical College, Palakkad and Mount Zion Medical College respectively in the second allotment. The said candidates did not "join" the colleges to which they were allotted during the second phase of allotment so as to make them ineligible for further counselling (mop up) and hence were eligible to register the options for mop up allotment. It cannot be said that they had indulged in seat blocking, the prevention of which is scope and purport of Regulation 5A(4) of the Graduate Medical Education Regulations with Appendix-F thereto.

The Online options of the said candidates for mop up admissions were considered accordingly and they were allotted to Jubilee Mission Medical College. In Jubilee Mission Medical College, after the second phase of allotment, there was 1 vacancy existing for MBBS and another vacancy had arisen due to college transfer, to which seats admission of eligible candidate were allowed as per mop up allotment. No vacancy in MBBS course exists WP(C).NO.29028 OF 2020(C)

in Jubilee Mission Medical College after the mop up round. It is most humbly submitted that the petitioner cannot impugn the admissions granted to the said candidates without them in the party array."

4. It is stated that mop up counselling is

conducted for filling up the remaining vacant seats

after the centralised allotment process as provided in

clause 11.6.9 of the KEAM Prospectus, which authorise

the 2nd respondent to issue necessary orders in due

course. It is stated that Ext.P3 notification was

issued laying down the guidelines for mop up

counselling in accordance with the same. It is further

stated that the mop up counselling is over and the

students have got admitted to the allotted colleges.

The 2nd respondent has also stated that medical

admissions are made in accordance with the provisions

contained in the Graduate Medical Education

Regulations, 1997. Appendix F to regulation 5A (4)

provides for the matrix applicable and permissibility

to students to exercise fresh choice during

counselling. As per this appendix, any student who

joined a college pursuant to second round of All india

Quota counselling will not be eligible for further WP(C).NO.29028 OF 2020(C)

counselling including second round of State Quota

counselling. It is stated that a student who joined a

college in the second round of State Quota counselling

would be ineligible for further counselling. It is

further stated that appendix F is provided in the

regulation in order to prevent seat blocking in common

counselling for admission to MBBS course; it provides

for permissibility to exercise fresh choice during

counselling and forfeiture of fee. As per this matrix

under Appendix F, a candidate who did not join after

second round of counselling of State Quota becomes

ineligible for further counselling only if he or she

joins the college; whereas a candidate who joined

becomes ineligible for further counselling. Relying on

the judgment in Rachit Sinha & Ors. v. Unon of India

(UOI) & Ors. (Writ Petition (C).Nos.357, 361, 366 and

424 of 2018) it is stated that there is no

infringement of any legal right on account of the

change of the method of counselling and the reduction

of chances of admission does not entail in violation of

any right. The Medical Council of India decided to make WP(C).NO.29028 OF 2020(C)

changes to the method of admissions to the Postgraduate

courses to arrest the blocking of seats by certain

candidates which was detrimental to the interest of

meritorious candidates. It is further stated that

taking note of the enormous difference in the fee

structure between the Self Financing Medical Colleges

and the Govt. Colleges as well as that between the NRI

seats and other seats in the Self Financing Medical

Colleges, free exit has been permitted even after

second round of State quota admissions, in the State

of Kerala subject to restrictions. Transfer would be

permitted to students admitted in Self Financing

Medical Colleges to Government Medical Colleges and

transfer from NRI seat to other seats is permitted

between two self financing colleges or in the same

college. But transfer would not be permitted to

students admitted in one Govt. Medical College to

another and students from one self financing medical

college to another self financing medical college. It

is also stated that the sdtudents allotted to MBBS/BDS

courses through All India counselling are not allowed WP(C).NO.29028 OF 2020(C)

to participate in the mop up counselling. In the case

of the petitioner, she had registered 13 options for

mop up counselling including NRI quota seat in Jubilee

Mission Medical College as 11th option. It is stated

that as she had joined a self financing college as per

the allotment in the second phase of State Quota

Counselling, her movement to another Self Financing

College was blocked as per the guidelines for mop up

allotment.

5. The petitioner has filed a reply affidavit

stating that Appendix F of the Graduate Medical

Education Regulations do not have any applicability in

the case of the petitioner. It is stated that the

respondents acted in violation of Clause 11.6.7 of the

prospectus by allowing the 2 candidates who did not

choose to join even after they were allotted to self

financing colleges; as per clause 11.6.7 a candidate

who has not joined the colleges to which he/she is

allotted will not only be ineligible to participate in

the mop up counselling but will entail forfeiture of

all the existing options. It is therefore stated that WP(C).NO.29028 OF 2020(C)

Sl.Nos.29 and 315 in Ext.P6 list, who were already

allotted to self financing medical college as per

Ext.P7 allotment list, lost their right to participate

in any other counselling on account of their non-

joining. It is stated that even on 29.12.2020 one seat

was filled up in the Jubilee Medical Mission College

admitting rank no. 3161, who is also ranked below the

petitioner. According to the petitioner, Ext.P3 mop up

notification though provides that transfer is not

permitted from one self financing college to another,

transfer from NRI seat to Government/minority seat

shall be permitted as there is no restriction for the

same. It is stated that the petitioner had opted for

NRI seat in Jubilee Mission Medical College, as

permitted in Ext.P3 notification for mop-up. It is

stated that her movement to another self financing

college cannot be said to have been blocked after the

second phase of State quota counselling, because she is

not a student who was granted allotment in the second

phase of State quota counselling; the only change

occured for her was that she was changed from State WP(C).NO.29028 OF 2020(C)

merit to all India merit in the very same college even

without any option from her.

6. Heard Sri P.Nandakumar, the learned counsel

for the petitioner and Sri V.Manu, the learned Senior

Government Pleader who submitted that there occurred

some inadvertent mistakes in the counter affidavit in

stating the number of seats which remained vacant.

Relying on the judgments in Arvind Kumar Kankane v.

State of U.P & Ors. 2001 KHC 1650 : 2001 (8) SCC 355 :

AIR 2001 SC 2800; Veena Guptaner (Dr.) v. University of

Delhi [1994 KHC 1650 : AIR 1994 Del. 108; Hanna Thasnim

v. State of Kerala & Ors. 2014 KHC 210 : 2014 (2) KLT

SN 20 : ILR 2014 (2) Kerala 388; judgment in

WP(c).No.35202 of 2018 which was affirmed in the

judgment in W.A.No.2230/2018 and the judgment in

W.P(c).No.25637 of 2020 which was affirmed in the

judgment in W.A.No.1524 of 2020, the learned Senior

Government Pleader argued that the there is no

illegality in the process of mop up allotment and that

the petitioner is estopped from challenging at this

point of time, that too, without impleading any of the WP(C).NO.29028 OF 2020(C)

students on the party array.

7. The contention of Sri. Nandakumar is that in

view of subclause (iv) of Clause 11.6.7 of the

prospectus, the candidates mentioned in ground B have

become ineligible for participating in the mop up

allotment. Therefore, it is necessary to have a look

at Clause 11.6.7, which reads as follows:

" 11.6.7. General Rules related to registering of Options:

(i) Candidate can register all the available options if he/she desires so. However, it is not compulsory that the candidates should exercise all the options.

(ii) A candidate will not be allotted a seat in a course of a college if he/ she has not opted the course-college combination during option registration process of CAP-2020.

(iii) A candidate is bound to accept an allotment as per the priority registered in the Option list and he/she has to surrender the seat already occupied by him/her, if he/she is allotted based on options furnished against arising/future vacancy. Request to retain the existing admission after an allotment is made, based on the option registered, will not be considered under any circumstances.

(iv) Failure to report for admission in the allotted institution, after remitting the required fee within the stipulated time will result in the forfeiture of his/her allotment to that course and cancellation of all the existing options in the stream to which that allotment belongs.

(v) For each phase of CAP 2020 subsequent to the initial phase, confirmation of the higher order options by loging in to the Option Registration Page and clicking the 'confirm' button is mandatory to participate in that phase of allotment even if no cancellation/re-arrangement of options is desired. Non-confirmation of higher order WP(C).NO.29028 OF 2020(C)

options for a particular phase of CAP will lead to automatic deletion of higher order options belonging to the course(s) included in that phase, making them unavailable for the subsequent phases also."

Mop up counselling is governed by Clause 11.6.9, which

reads as folows.

"11.6.9: Mop-up Counseling: Mop-Up Counselling for

filling up the remaining vacant seats, if any, will be

conducted after the completion of the Centralised

allotment process. All qualified candidate included in

the rank lists concerned is entitled to attend the Mop-Up

Counselling. However, the eligibility/claims of

candidates to participate in a Mop-Up Counselling shall be

in accordance with the conditions in the relevant

Government Orders/Orders of the Hon'ble Courts, concerned

Central Councils. The courses under Engineering stream

are listed in Annexure II(1)(b). The Commissioner for

Entrance Examinations is authorized to issue necessary

orders regarding Mop-Up Counselling in due course.

Detailed notification will be issued at the time of

allotment." xxxx

Clause 11.6.9 would show that any candidate included in

the rank list can participate in it subject to any

other Government order. The ineligibility incurred by

them on account of non-joining does not incur any

disqualification in participating in the mop-up WP(C).NO.29028 OF 2020(C)

counselling, which is governed by separate orders

issued by the Commissioner for Entrance

Examination/Government. At the same time, a candidate

who joined a self financing college becomes ineligible

for mop-up allotment as held by the Division Bench of

this Court in Hanna Thazneem's case (supra). The

judgments in Veena Guptaner (Dr.) v. University of

Delhi [1994 KHC], the judgment dated 29.10.2018 in

WPC.35202/18 as affirmed in W.A.2230/18, judgment in

W.P.25637/2020 affirmed in W.A.No.1524/2020 etc. would

also fortify the same proposition.

8. As pointed by the learned Senior Government

Pleader, this Court has in the judgment dated 7.8.2019

in W.P(C).No.21547/2019 repelled the challenge to the

guidelines issued for mop up counselling and upheld the

admissions given to the candidates with lower rank in

similar circumstances. In that case, Commissioner for

Entrance Examinations had called for options for mop up

counselling for admisions to MBBS seats in NRI quota.

There was a condition that candidates who stand

admitted under All India quota shall not be allowed to WP(C).NO.29028 OF 2020(C)

participate in the mop up counselling. In other words,

the candidates, who were admitted to MBBS course under

all other categories would be permitted to take part in

the mop up counselling. The notification had provided

that transfer would not be permitted to students from

one Govt. Medical College to another Govt. Medical

College and from one self financing Medical College to

another self financing medical college. It further

provided that transfer would be permitted in the mop up

counselling to students admitted in Self Financing

Medical Colleges to Government Medical colleges and

vice versa. Transfer to NRI seats would be permitted

to Government/Minority seat between 2 self financing

colleges or in the same college, even if it is in the

same course. The petitioners therein had secured

higher rank. Therefore, they claimed that they should

be given the opportunity to opt for admission in a

college of their higher option. Relying on the

judgment in W.P(c).No.35202/2018 this Court held that

the spot admissions conducted in respect of seats which

fall vacant by unforseen circumstances and filled up WP(C).NO.29028 OF 2020(C)

by a candidate with lower rank cannot be interfered

with. Relying on the judgment in Arvind Kumar Kankane

v. State of U.P & Ors. [2001 KHC 1650] it was held that

the filling up of a seat by a candidate with lower rank

in similar circumstances can only be treated as one in

a fortuitous circumstance and there would not be any

unreasonableness. At the same time all of them are

governed by the provisions under the Undergraduate

Medical Admission Rules which provide for the

consequences after each phase of conselling/allotments

as well as admissions as directed in interim order

passed in Rachit Sinha & Ors. v. Unon of India (UOI) &

Ors. It cannot be said that the Graduate Medical

Admission Rules issued by the erstwhile Medical Council

of India is not applicable to the petitioner.

9. Moreover even though the petitioner claimed

that she is entitled to be given admission in a self

financing college of her higher option in preference to

the candidates who are ranked lower to her, none of

them are made parties to this Writ Petition. The

learned Senior Government Pleader on instructions WP(C).NO.29028 OF 2020(C)

submitted that all the seats for MBBS course in the

Jubilee Medical Mission Hospital have already been

filled up. Therefore, even assuming tha the petitioner

was eligible for participation in the mop up

counselling and for transfer from one self financing

college to another from all India seat to NRI seat,

irrespective of the provisions contained in the

prospectus and also the guidelines issued for mopup

allotment, no relief can be granted to her.

Accordingly, the Writ Petition is dismissed.

Sd/-

(P.V.ASHA, JUDGE) rtr/ WP(C).NO.29028 OF 2020(C)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF 1ST ALLOTMENT LETTER ISSUED TO THE PETITIONER DATED 20.11.2020.

EXHIBIT P2 TRUE COPY OF 2ND ALLOTMENT LETTER ISSUED TO THE PETITIONER DATED 10.12.2020.

EXHIBIT P3 TRUE COPY OF NOTIFICATION DATED 12.12.2020 FOR MOP UP COUNSELLING.

EXHIBIT P4 TRUE COPY OF MOP UP OPTION LIST OF THE PETITIONER.

EXHIBIT P5 TRUE COPY OF PERSONAL DETAILS OF THE PETITIONER'S ALLOTMENT AS SHOWN IN THE WEBSITE OF THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF RELEVANT EXTRACT OF MOP UP ALLOTMENT LIST DATED 20.12.2020.

EXHIBIT P7 TRUE COPY OF RELEVANT EXTRACT OF THE 2ND ALLOTMENT LIST DATED 10/12/2020

EXHIBIT P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE ALLOTMENT LIST OF CANDIDATES WHO HAVE TAKEN ADMISSION IN STRAY VACANCIES