Sameera.T.S vs The State Of Kerala
2021 Latest Caselaw 20232 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                  &
             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
                       WA NO. 1249 OF 2021
 AGAINST THE ORDER/JUDGMENT IN WP(C) 14996/2021 OF HIGH COURT OF
                        KERALA, ERNAKULAM
APPELLANTS/WRIT PETITIONERS:

    1     SAMEERA.T.S.,
          AGED 18 YEARS, D/O.THALHATH, T.S.HOUSE,
          PULIPPARA PANGODE P.O., PIN-695 609.
    2     ADHEEL MATHEW,
          AGED 18 YEARS, S/O.MATHEW PHILIP, ARA ACRE BUNGLOW,
          PAPER MILL P.O., PUNALUR, VILAKKUDY, KOLLAM-691 332.
          BY ADVS.
          ARUN KRISHNA DHAN
          T.K.SANDEEP
          ARJUN SREEDHAR
          ALEX ABRAHAM
RESPONDENTS/RESPONDENTS 1 TO 3:

    1     THE STATE OF KERALA,
          REPRESENTED BY ITS SECRETARY,
          DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT,
          THIRUVANANTHAPURAM-695 001.
    2     THE COMMISSIONER OF ENTRANCE EXAMINATIONS,
          OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,
          HOUSING BOARD BUILDING, SHANTHI NAGAR,
          THIRUVANANTHAPURAM-695 001.
    3     THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
          OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
          HOUSING BOARD BUILDING, SHANTHI NAGAR,
          THIRUVANANTHAPURAM-695 001.


          SRI.ASOK M CHERIAN ADDL.AG FOR RESPONDENTS
          SRI.ANTONY MUKKATH, SR. GP


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.1249 of 2021
                                     2




                               JUDGMENT

Dated this the 30th day of September, 2021

S. Manikumar, C.J.

Instant writ appeal is filed by the writ petitioners, challenging

the judgment of the learned Single Judge in W.P.(C).No.14996 of

2021 dated 17.09.2021, whereby, the reliefs sought for were

declined and the writ petition was dismissed.

2. W.P.(C) No.14996 of 2021 was filed with the following

reliefs:

"i) declare Clause 9.7.4(b), (c) of Ext.P4, in so far as it provides 50% weightage to grade/marks obtained in the Class XII Examinations for professional Engineering/ Architecture courses for the ensuing academic year 2021-22 is per se discriminatory, arbitrary and violative of Articles 14 and 21 of the Constitution of India and accordingly to strike down the same;

ii) a writ of mandamus or any other appropriate writ order or direction commanding the 1st respondent to give admission to professional courses within Kerala State for the academic year 2021-22 solely on the basis of the marks secured by the candidates in the common entrance examination conducted by the 2nd respondent as per Ext.P4 Prospectus, without taking into account or W.A.No.1249 of 2021

giving weightage to the marks obtained by the candidate in Class XII in any manner."

3. Basic facts for the disposal of the appeal are as follows:

Appellants were the students of Mother Theresa Memorial

Central School, Pangode and Oxford Central School, Kollam

respectively, who have completed the XII Standard, under the

CBSE Board, in the year 2021. The minimum qualification required

for higher education in the State of Kerala is passing higher

secondary education in State syllabus or higher secondary

education in CBSE syllabus or higher secondary education in ICSE

syllabus. It is an admitted fact that, as far as professional degree

courses in medicine, engineering, architecture etc., are concerned,

admissions are regulated on the basis of a rank list prepared

through a common entrance examination and the students, who

secure 45% marks in the XII standard, are eligible to apply for the

entrance examination.

4. The grievance of the appellants is that, for the admissions

in the engineering colleges, in the State of Kerala, for the

academic year 2021-22, it is proposed to render equal weightage

of 50:50 to the score obtained in the entrance examination and W.A.No.1249 of 2021

the marks obtained in the XII standard, which is unjust and illegal

in the present scenario of the mode of marks awarded in the XII

standard of CBSE and ICSE streams, due to Covid - 19 pandemic,

and the way in which the XII standard examination was conducted

and the marks awarded by the State Board.

5. It is admitted by the appellants that, for admission to

engineering, equal weightage of 50:50 score, obtained in the

entrance examination and the marks obtained in XII standard, has

been in prevalence from 2011 onwards. According to the

appellants, during the academic year 2020-21, altogether different

situation prevailed as no Plus Two examination has been

conducted for CBSE and ICSE students and instead, marks have

been awarded on the basis of the scheme submitted by the CBSE

and ICSE. But, in so far as the State syllabus students are

concerned, a name sake examination has been conducted for Plus

Two and a highly liberalized system of evaluation was done, in the

light of the prevailing pandemic situation, and resultantly, there

was no proper evaluation of the academic merit of the students,

who have completed Plus Two course, during the academic year in

question, in any of the three basic channels for higher studies.

6. Sum and substance of the contention advanced by the W.A.No.1249 of 2021

learned counsel for the appellants is that, marks of the entrance

examination alone ought to have been taken as the criteria for

drawing up the rank list and providing admissions to various

professional courses, within the State, for the academic year 2021-

22.

7. It is also an admitted fact that appellants have participated

in the entrance examination, in accordance with the stipulations

contained in Ext.P4 prospectus issued by the Commissioner for

Entrance Examinations, Kerala, for the academic year 2021-22

right from the submission of applications till the admissions are

made. The modality under which preparation of the rank list is

specified in the prospectus, wherein, it is clearly stated that the

rank list would be prepared by giving equal weightage of 50:50 to

the score, obtained in the entrance examination and the marks

obtained in the XII standard examination. Reading of the

prospectus would also make it clear that the prescriptions are

made on the basis of a formula of standardisation, approved by

the expert committee constituted by the Government.

8. Before the writ court, State Government have filed a

detailed counter affidavit, contending that the Commissioner for

Entrance Examinations has invited online applications for W.A.No.1249 of 2021

admission to professional degree courses as per the notification

dated 31.05.2021, and the procedure to various professional

degree courses for the year 2021 was done, as per the provisions

in the prospectus for the academic year concerned. It is further

contended that, as per Clause 1.4(a) of the prospectus, the

admission to engineering colleges shall be regulated on the basis

of merit, as assessed, by giving equal weightage of 50:50 to the

marks obtained in the entrance examination for engineering

(Paper I and Paper II, altogether) and the grade or marks obtained

for mathematics, physics and chemistry put together in the final

year of the qualifying examination, after effecting the

standardisation procedure, as per the formula contained in the

prospectus. The other relevant portions of the prospectus are

relied upon by the Government, in order to contend that the

petitioners had not made out any case in the writ petition enabling

them to secure any reliefs.

9. Anyhow, the learned single Judge, after taking into

account the provisions of the prospectus and relying upon various

judgments of the Apex Court, has arrived at the firm conclusion

that the petitioners have not made out any case justifying

interference, exercising the power of discretion conferred under W.A.No.1249 of 2021

Article 226 of the Constitution of India.

10. Heard Mr.Arun Krishna Dhan, learned Counsel for the

appellants and Mr.Asok M. Cherian, learned Additional Advocate

General appearing for the respondents, and perused the pleadings

and the materials on record.

11. The basic contention advanced by learned counsel for

the appellants is that, the learned single Judge has failed to take

note of the fact that the examination conducted by the State

Board did not have sufficient standard, and the C.B.SE and I.C.S.E

having not conducted any examination for Plus Two and a policy

for evaluation was made for assessing the general academic merit

of the students for award of marks, which cannot be equated with

the marks awarded in a regular examination, if standardisation, as

stipulated in the prospectus, is done for preparation of the rank

list for the professional degree courses, it would materially affect

the students, who have secured high marks in the qualifying

entrance examination conducted as per the prospectus in force.

12. We have evaluated the contentions advanced by the

learned Counsel for the appelllants, as well as learned Additional

Advocate General, who has advanced arguments relying upon the

requirements contained in the prospectus. In our considered W.A.No.1249 of 2021

opinion, the apepllants have participated in the entrance

examination fully knowing well that the standardisation of the

marks would be done in accordance with the formula fixed by the

State Government as per the advice of the expert committee in

the year 2011.

13. The petitioners, having participated in the entrance

examination knowing fully well the manner in which the rank list

would be prepared, cannot turn around and contend that the

provisions contained in the prospectus regarding the

standardisation of the marks of the qualifying examination and

the entrance examination is illegal and arbitrary, which thus

means, if the appellants had any objection to the rules contained

in the prospectus, which is the rule of the game, they ought to

have challenged it before participating in the examination. In

absentia of any such attempt from the part of the appellants, the

action can only be viewed as an afterthought and making a

preparation for a future challenge in the event of any eventualities

adverse to the appellants in the admission process.

14. The issue is no more res integra, since the Hon'ble Apex

Court had occasion to consider the said legal aspect in its various

judgments and it is only appropriate that some of the decisions W.A.No.1249 of 2021

are referred to, enabling us to arrive at a logical conclusion, in

respect to the arguments advanced by the learned counsel for the

appellants.

15. In Dr.G.Sarana v. University of Lucknow & Others (AIR

1976 SC 2428) it was held by the Hon'ble Apex Court that the

appellant who knew about the composition of the selection

committee and took a chance to be selected, cannot thereafter

question the constitution of the committee.

16. In Om Prakash Shukla v. Akhilesh Kumar Shukla (1986

Supplementary SCC 285), wherein, a three-Judge Bench of the

Hon'ble Apex Court held that, petitioner appeared in the

examination without any protest was not entitled to challenge the

result of the examination. The same view was reiterated by the

Hon'ble Apex Court in Madan Lal & Others v. State of J & K & Ors

(AIR 1995 SC 1088), wherein, at paragraph 9 held that, it was held

that the petitioners, who have participated in the written test and

oral interview on the basis of the notification issued after the

selection procedure is over, is not entitled to attack the

constitution of the selection committee.

17. In Manish Kumar Shahi & Others v. State of Bihar &

Others [(2010) 12 SCC 576], the aforesaid principle was reiterated W.A.No.1249 of 2021

and held that the petitioner who has approached the writ court

under Article 226 of the Constitution of India, after finding that his

name does not figure in the merit list prepared by the commission,

is not entitled to get any relief.

18. In Pradeep Kumar Rai and Others v. Dinesh Kumar

Pandey and Others [(2015) 11 SCC 493], the question considered

was in respect of a promotion to a post and the selection process

thereto, wherein the Apex Court held that the challenge to

selection process after participating in the interview and

declaration of adverse result, is not maintainable, since the

participation in the selection process was without raising any

objections. So also, we find that the prospectus was prepared by

the Government, taking into account the expert opinion in regard

to the manner in which the rank list is to be prepared. In our

considered opinion, the contentions raised by the appellants with

respect to the manner in which the State Board has conducted the

examinations and the evaluation done by the C.B.S.E and the

I.C.S.E thus enabling the students to secure more marks due to the

peculiar nature of the questions provided and performance

assessed, respectively, cannot be verified by the writ court in a

proceeding under Article 226 of the Constitution of India. W.A.No.1249 of 2021

Furthermore, there are no materials produced by the appellants

before the writ court even prima facie to establish such an

averment made, so as to grant any relief to the appellants, and

therefore, the writ court was of the clear opinion that the

appellants were not entitled to secure any relief there being no

arbitrariness or illegality.

19. In the light of the above discussions and decisions, we

have no hesitation to hold that the appellants have not made out

any case for interference in an intra court appeal filed under

Section 5 of the Kerala High Court Act, 1958, there being no error

in exercise of the discretionary jurisdiction, or other legal

infirmities justifying our interference.

The writ appeal is, therefore, dismissed.

Pending interlocutory applications, if any, shall stand closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

                                               Shaji P.Chaly
                                                  Judge

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                                                    P.A. TO JUDGE