Kerala High Court
Dr.Neha Mariam George vs State Of Kerala on 12 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 12TH DAY OF MAY 2022 / 22ND VAISAKHA, 1944
WP(C) NO. 15225 OF 2022
PETITIONER:
DR.NEHA MARIAM GEORGE
AGED 24 YEARS
D/O. GEORGE THOMAS, VETTUVAZHI PUTHENPURAYIL, MEEMPARA
P.O., PUTHENCRUIZE, ERNAKULAM DISTRICT - 682308.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT
OF HEALTH & FAMILY WELFARE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,
(KERALA) OFFICE OF THE COMMISSIONER FOR ENTRANCE
EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDING,
SHANTHI NAGAR, THIRUVANANTHAPURAM - 695 001.
3 DR. AKHILA,
D/O. P.K. ABDUL RAHIMAN KUNJU, DR. SOMERVELL MEMORIAL
CSI MEDICAL COLLEGE & HOSPITAL, KARAKONAM P.O.,
THIRUVANANTHAPURAM - 695504.
4 THE PRINCIPAL,
DR. SOMERVELL MEMORIAL CSI MEDICAL COLLEGE & HOSPITAL,
KARAKONAM P.O., THIRUVANANTHAPURAM - 695504.
BY ADVS.V.A.MUHAMMED
ARUN.B.VARGHESE - FOR R4
M.SAJJAD
P.A.JENZIA
AISWARYA V.S.
VARNA MANOJ
SRI. PRAMOD P.G. GOVERNMENT PLEADER(FOR R1 & R2)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.05.2022 AND FINALLY HEARD ON 12.05.2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.15225/2022 2
JUDGMENT
The petitioner has approached this Court challenging the admission
granted to the 3rd respondent to the MS (Ophthalmology) course at the 4 th
respondent College. Inter alia she seeks a writ of certiorari to quash the
admission granted to the 3rd respondent and a declaration that the conversion
of that seat from NRI (Minority) to NRI (Open) is illegal and unauthorized.
2. The followings facts are not in dispute. The petitioner is a
candidate belonging to a Christian minority community who qualified in the
NEET examination for admission to the Post Graduate Medical Courses in the
academic year 2021-22. During the first and the second rounds of
counselling, the petitioner had not opted for the MS (Ophthalmology) course
in the 4th respondent college. By Ext.P11 letter of the Commissioner for
Entrance Examinations, it was pointed to the 4 th respondent that the NRI
seats remaining unfilled may be converted into State merit seats at the fees
specified for State merit seats and that allotment can be made to those seats
during the mop-up allotment. In response to Ext.P11, the 4 th respondent
addressed Ext.P2 letter to the Commissioner for Entrance Examinations
stating that if any of the NRI (Minority) seats in the College remain unfilled
on account of non-availability of candidates, the same may be converted into
NRI seats and not to State merit seats. In view of Ext.P2 order of the
Supreme Court dated 31.3.2022 in W.P.(C)No.174/2022, Ext.P3 revised
schedule and guidelines were published by the Commissioner for Entrance
Examinations regarding mop-up counselling for PG Medical Courses for
academic year 2021-2022. In terms of Ext.P3, the State mop-up counselling
for PG Medical Courses for academic year 2021-2022 was revised as under:-
"18.4.2022 to 19.4.2022, 4.00 PM- Provision for surrender of
seats for participation in the State Mop up Round (It may be noted
that these candidates will be eligible to participate in the State Mop
up Round only).
20.4.2022 to 21.4.2022, 4.00 PM- Provision for fresh option
registration for State Mop up Round."
It was made clear that the following candidates are eligible for registration of
fresh options in State Mop up Round.
"1. Those candidates who have not got any allotment or are not
holding a Kerala State PG seats as on 19.4.2022 5.00 P.M.
2. Those candidates who have surrendered their allotted
seat/rejoined Round 2 seat complying with the Notification
from this office dated 8.4.2022, before 19.4.2022, 4.00 PM.
3. Those candidates who are not holding a seat of All India Round
1, Round 2 or Special Round and as per the guidelines of MCC."
By Ext.P5, the Commissioner for Entrance Examinations published mop-up
allotment list in which it was seen that the MS (Ophthalmology) seat available
for NRI (Minority) in the 4 th respondent College was converted to NRI (Open)
[See Sl. No.130 of Ext.P5]. Ext.P5 was preceded by a draft list on 27.4.2022.
On noticing the draft list, the petitioner sent Ext.P6 communication to the 2 nd
respondent objecting to her exclusion on the ground that the seat in question
had been converted to NRI (Open) in the place of NRI (Minority). This was
followed by Ext.P7 email on 29.4.2022. The petitioner also addressed Ext.P8
letter to the Chief Minister's Public Grievance Redressal Cell and has
thereafter, approached this Court by filing the above writ petition.
3. The learned Government Pleader appearing for respondents 1
and 2 has filed a statement contending that though the seat in question was
reserved for NRI (Minority) vide G.O.(Rt) No.197/2022/H&FWD dated
22.1.2022 approving the seat matrix for admissions to PG Medical Courses
for academic year 2021-2022, the Commissioner for Entrance Examinations
had converted the seat into NRI (Open) quota for mop-up allotment taking
into consideration Ext.P12 request from the 4 th respondent. It is submitted
that the conversion was deemed to necessary on account of the fact that it was
felt that there was no candidate available for the NRI (Minority) seat as
neither the petitioner nor any other candidate had opted for the said seat in
the first and second rounds of allotment. It is submitted that the decision to
convert the seat was a bonafide decision of the Commissioner for Entrance
Examinations to ensure that a seat in MS (Ophthalmology) would not remain
unfilled. It is submitted that the 3 rd respondent was granted admission to
that seat following the conversion. It is submitted since no candidate had
opted for NRI (Minority) seat in MS (Ophthalmology) in the 4 th respondent
College in the first and second rounds of allotment, the conversion of the seat
into NRI (Open) and the admission granted to the 3 rd respondent cannot be
faulted.
4. The learned counsel appearing for the 3 rd respondent vehemently
contends that the 3rd respondent had obtained a rank higher than the
petitioner in the NEET examinations and was entitled to be admitted against
the seat available for MS (Ophthalmology), in the 4th respondent's institution.
It is submitted that the petitioner who had failed to opt for the seat could not
at this point of time claim that she is entitled to be admitted to the said seat.
It is submitted that despite the approval of the seat matrix by the Government
through the Government Order dated 22.1.2022, it was open to the
Commissioner for Entrance Examinations to allow conversion of the seat if
no candidate was available against the specified category. It is submitted that
it will be unfair and unjust to allow the prayer of the petitioner as the 3 rd
respondent is already been admitted and has commenced her course of study.
It is submitted that the 3 rd respondent will be put to great prejudice if this
Court were to now direct the admission granted to the 3 rd respondent be
cancelled and the said seat be offered to the petitioner herein.
5. The learned counsel appearing for the 4 th respondent has pointed
out the circumstances under which Ext.P12 communication was issued by the
College to the Commissioner for Entrance Examinations. It is submitted that
the seat in question was kept apart in terms of the Government Order dated
22.1.2022 approving the seat matrix for the College for a student belonging to
the NRI (Minority) category. It is submitted that the College had requested
the Commissioner for Entrance Examinations to convert the said seat into
NRI category only on account of the fact that the Commissioner for Entrance
Examinations had, by Ext.P11, requested for converting the seat into State
merit category and at the fee prescribed for State merit category. It is
submitted that had a candidate been available under the NRI (Minority)
category, the College would not have requested for conversion of the seat into
NRI (Open) category.
6. I have considered the contentions raised. It is not disputed
before me that the petitioner had a right to submit an option for MS
(Ophthalmology) seat even at the time of mop-up allotment. Indeed, this
cannot be disputed in the light of Ext.P3 notification, the terms of which have
been extracted herein before. It is also not disputed that the petitioner
belongs to NRI (Minority) category. When the mop-up allotment was to be
held between 20.4.2022 and 21.4.2022, it was not open to the authorities to
convert the seat from NRI (Minority) category to NRI (Open) category before
21.4.2022. That being the position, I have no hesitation to hold that the
petitioner was wrongfully denied admission. Immediately after the draft list
was published on 27.4.2022, the petitioner had raised the issue with the
Commissioner for Entrance Examinations vide Ext.P6 communication.
However, that did not evoke any response and a final allotment list was
published vide Ext.P5 on 29.4.2022. The facts being as aforesaid, I direct
that the petitioner be granted admission to the 4 th respondent's College for
MS (Ophthalmology) course after cancelling the admission granted to the 3 rd
respondent. To that extent, Ext.P5 allotment will stand set aside.
7. At this stage, the learned counsel appearing for the 3 rd
respondent submits that since the cancellation of admission granted to the 3 rd
respondent will have disastrous consequences as far as she is concerned this
Court must also consider whether the 3rd respondent can be accommodated
against any other vacant seats in any other college in the State of Kerala.
Therefore, I directed the learned Government Pleader to obtain instructions
from the 2nd respondent as to whether there is any seat against which the 3 rd
respondent can be accommodated by order of this Court.
8. The learned Government Pleader has obtained instructions from
the Commissioner for Entrance Examinations. The Commissioner for
Entrance Examinations has reported that the last date for completion of
admission was 7.5.2022. It is submitted that amongst the options given by
the 3rd respondent , two seats namely, MD (Pediatrics) at Government
Medical College, Thiruvananthapuram (her 15 th option) and MD (Pathology)
at the Amala Institute of Medical Sciences, Thrissur (222 nd option) are vacant.
It is submitted that the vacancy in MD (Pediatrics) at Government Medical
College, Thiruvananthapuram has occurred due to the surrender of seat by a
candidate on the basis of the interim order of this Court dated 4.5.2022 in
W.P.(C)No.14724/2022. It is submitted that the seat was surrendered on
7.5.2022 and remains vacant even on the last date for closing of admission.
It is also pointed out that about 390 candidates, who have registered options
for MD (Pediatrics) possess higher rank than the 3 rd respondent. This is a
case where the petitioner had to be given relief on account of an inadvertent
error that occurred in the conversion of the seat in M.D (Ophthalmology) at
the 4th respondent college from NRI (Minority) to NRI (Open). However,
one cannot lose sight of the fact that the 3 rd respondent had been granted
admission to that seat. In order to ensure that justice is done, on
equitable considerations I direct that the 3rd respondent be offered the vacant
MD (Pediatrics) seat at the Government Medical College,
Thiruvananthapuram. I note that the said seat will remain vacant, if the 3 rd
respondent is not accommodated against that seat, as no further admissions
can be made. Hence no other candidate will be prejudiced. The 2 nd
respondent shall do the needful in the matter without any delay. Writ Petition
shall stand disposed of as above.
sd/-
GOPINATH P.
JUDGE
acd
APPENDIX OF WP(C) 15225/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ALLOTMENT OPTION LIST
MADE BY THE PETITIONER FOLLOWING THE
MOP-UP ALLOTMENT PROCESS.
Exhibit P2 TRUE COPY OF THE ORDER PASSED BY THE
OF 2022 DATED 31.03.2022.
Exhibit P3 TRUE COPY OF THE MOP-UP ALLOTMENT
REVISED SCHEDULE AND GUIDELINES ISSUED
BY THE GOVERNMENT VIDE NOTIFICATION
DATED 16.04.2022.
Exhibit P4 TRUE COPY OF THE LIST OF PG MEDICAL
SEATS NOTIFIED BY THE 2ND RESPONDENT AS
AVAILABLE AT DR. SOMERVELL MEMORIAL
MEDICAL COLLEGE.
Exhibit P5 TRUE COPY OF THE MOP-UP ALLOTMENT LIST
TO PG MEDICAL COURSES 2021 PUBLISHED BY
THE 2ND RESPONDENT DATED 29.04.2022.
Exhibit P6 TRUE COPY OF THE E-MAIL COMPLAINT
REGARDING PROVISIONAL ALLOTMENT ISSUED
BY THE PETITIONER TO THE 2ND RESPONDENT
DATED 28.04.2022.
Exhibit P7 TRUE COPY OF THE E-MAIL REMINDER ABOUT
THE COMPLAINT ISSUED BY THE PETITIONER
TO THE 2ND RESPONDENT DATED 29.04.2022.
Exhibit P8 TRUE COPY OF THE COMPLAINT ISSUED BY THE
PETITIONER TO THE CHIEF MINISTER'S
PUBLIC GRIEVANCE CELL DATED 30.04.2022.
Exhibit P9 TRUE COPY OF THE ORDER PASSED BY THE
OF 2017 DATED 09.05.2017.
RESPONDENT EXHIBITS
Exhibit R3(A) TRUE COPY OF THE ALLOTMENT CARD OF THE
3RD RESPONDENT VIDE APPLICATION NO.
2100967
PETITIONER EXHIBITS
Exhibit P10 TRUE COPY OF THE NOTIFICATION DATED 26-
03-2022 ISSUED BY THE 2ND RESPONDENT.
Exhibit P11 TRUE COPY OF THE LETTER DATED 05-03-2022
GIVEN BY THE 2ND RESPONDENT TO THE
PRINCIPAL OF THE SELF-FINANCING MEDICAL
COLLEGES.
Exhibit P12 TRUE COPY OF THE COMMUNICATION
NO.1709/ACAD.1/2022/MCHK DATED 09-03-
2022 ISSUED BY THE 4TH RESPONDENT.
Exhibit P13 TRUE COPY OF THE NOTIFICATION DATED 03-
04-2022 ISSUED BY THE 2ND RESPONDENT.
