Kerala High Court

State Of Kerala Represented By ... vs Dr. Neha Mariam George on 26 May, 2022

           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 26TH DAY OF MAY 2022 / 5TH JYAISHTA, 1944
                      WA NO. 609 OF 2022
   AGAINST THE JUDGMENT IN WP(C) 15225/2022 OF HIGH COURT OF
                    KERALA DATED 12.5.2022
APPELLANT/RESPONDENTS 1& 2 IN WPC:

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

    2     THE COMMISSIONER FOR ENTRANCE EXAMINATIONS
          OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,
          5TH FLOOR, HOUSING BOARD BUILDING, SHANTHI NAGAR,
          THIRUVANANTHAPURAM, PIN - 695001
          BY ADV GOVERNMENT PLEADER


RESPONDENTS/PETITIONER & RESPONDENTS 3 & 4 IN WPC:

    1     DR. NEHA MARIAM GEORGE
          AGED 24 YEARS, D/O GEORGE THOMAS,
          VETTUVAZHI PUTHENPURAYIL, MEEMPARA P.O,
          PUTHENCRUZE, ERNAKULAM, PIN - 682308

    2     DR. AKHILA
          D/O P.K ABDUL RAHIMAN KUNJU,
          DR.SOMERVELL MEMORIAL CSI MEDICAL COLLEGE & HOSPITAL,
          KARAKONAM P.O, THIRUVANANTHAPURAM, PIN - 695504

    3     THE PRINCIPAL
          DR. SOMERVELL MEMORIAL CSI MEDICAL COLLEGE &
          HOSPITAL, KARAKONAM P.O,
          THIRUVANANTHAPURAM, PIN - 695504

          BY ADVS.
          GEORGE POONTHOTTAM (SR.)
          S.SREEKUMAR (SR.)
          ARUN.B.VARGHESE
 W. A. No. 609 of 2022              -2-


            AISWARYA V.S.
            VARNA MANOJ
            NISHA GEORGE


OTHER PRESENT:

            SRI.   P.G.PRAMOD, GP,
            SRI.   GEORGE POONTHOTTAM(SR),
            V.A.   MUHAMMED
            SMT.   JENZIA P.A



     THIS    WRIT    APPEAL   HAVING      COME   UP    FOR    ADMISSION   ON
26.05.2022,    THE    COURT   ON    THE    SAME       DAY    DELIVERED    THE
FOLLOWING:
 W. A. No. 609 of 2022               -3-




                             JUDGMENT

S. Manikumar, C.J.

Before the writ court, Dr. Neha Mariam George, the 1 st

respondent herein, sought for the following reliefs:-

"i. Issue a writ of certiorari calling for the records leading to Exhibits P5 allotment of the seat in M.S. Ophthalmology in the 4th respondent College in favour of the 3 rd respondent and to quash the same;

ii. Issue a writ declaring that the conversion of the seat in M.S. Ophthalmology in the 4th respondent college to the general category (NRI) by the 2nd respondent is an unauthorized action and contrary to the constitutional provisions, judicial precedents and the specific directions contained in Exhibit-P9;

iii. Issue a writ declaring that the mop-up allotment process undertaken by the 2nd respondent without the representation and participation of the management to safeguard their constitutional rights is unauthorized and contrary to the directions contained in Exhibit-P9 and therefore the process in its entirety is vitiated."

2. Having considered the material on record and the submissions

of the respondents including Dr. Akhila, the 3rd respondent therein,

who was directed to be alloted a seat in MD (Pediatrics), writ court, in

paragraphs 6 to 8 of the judgment in W. P. (C) No. 15225 of 2022

dated 12.05.2022, ordered thus:-

"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 4th respondent's College for MS (Ophthalmology) course after cancelling the admission granted to the 3rd respondent. To that extent, Ext.P5 allotment will stand set aside.

7. At this stage, the learned counsel appearing for the

3rd respondent submits that since the cancellation of admission granted to the 3rd 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 3rd 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 (222nd 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 3rd 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 4 th 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 2nd respondent shall do the needful in the matter without any delay. Writ Petition shall stand disposed of as above."

3. Being aggrieved, State of Kerala, represented by the Secretary

to the Government, Department of Health & Family Welfare,

Thiruvananthapuram and the Commissioner for Entrance

Examinations, Thiruvananthapuram, respondents 1 and 2 respectively

in the writ petition, have preferred the instant appeal.

4. We have heard Mr. P. G. Pramod, learned Government

Pleader for the appellants, Mr. George Poonthottam, learned Senior

Counsel for the 1st respondent, Ms. Jenziya P. A., learned counsel

representing Mr. V. A. Mohammed for the 2nd respondent and Mr.

S. Sreekumar, learned Senior Counsel for the 3rd respondent.

5. Both the candidates, namely the writ petitioner Dr. Neha

Mariam George as well as Dr. Akhila, the 3 rd respondent therein, are