Kerala High Court
Akhila Saleem vs Commissioner For Entrance ... on 6 January, 2023
W.P.(C) No. 33438/2015 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
WP(C) NO. 33438 OF 2015
PETITIONER/S:
AKHILA SALEEM
THANDUPARAKKAL HOUSE, MAMPADU P.O., THANA, MALAPPURAM -
676 542.
BY ADVS.
SMT.NAMITHA JYOTHISH
RESPONDENT/S:
1 COMMISSIONER FOR ENTRANCE EXAMINATIONS
THIRUVANANTHAPURAM - 695 001.
2 DISTRICT COLLECTOR
MALAPPURAM DISTRICT, COLLECTORATE, MALAPPURAM - 676 505.
3 THE PRINCIPAL,
K.M.C.T MEDICAL COLLEGE, MANASSERI P.O., MUKKAM,
KOZHIKODE -673 602.
4 SREENATH P.,
D/O. ABOOBACKER, PALAPPRA HOUSE, ARIMANAL P.O., KALIKAVU,
MALAPPURAM DISTRICT - 676 525.
5 SANITHA C.M.,
4TH YEAR M.B.B.S, K.M.C.T MEDICAL COLLEGE, MANASSERI P.O.,
MUKKAM, KOZHIKODE - 673 602.
6 STATE OF KERALA, REPRESENTED BY
THE CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
BY ADVS.
SRI.C.M.ANDREWS
SRI.K.C.ANTONY MATHEW
SMT.BOBY M.SEKHAR
SRI.JITHIN LUKOSE
SRI.K.M.MOHAMED ABDURAHIMAN
SRI.P.SAMSUDIN
SRI.SHYAM PADMAN
R1, R2 and R6 BY SRI. JOBY JOSEPH, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 33438/2015 :2:
SHAJI P. CHALY, J.
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W.P.(C). No. 33438 of 2015
---------------------------------------------------------
Dated this the 6th day of January, 2023.
JUDGMENT
The captioned writ petition is filed by a 4th year MBBS student
of the KMCT Medical College, Kozhikode, respondent No.3, seeking
to quash Exhibit P4 order dated 25.08.2015 passed by the
Commissioner for Entrance Examinations, Thiruvananthapuram,
respondent No.1, on the basis of the directions issued by this Court
in the judgment dated 27.05.2015 in W.P.(C) No. 19552 of 2013.
2. Brief material facts for the disposal of the writ petition are
as follows:
According to the petitioner, she came out successful in the
entrance examinations held by the Commissioner for Entrance
Examinations, Thiruvananthapuram, respondent No.1, for admission
to the medical courses for the year 2011-2012 with rank No.1517.
Apparently, she got admission in the second respondent college in
the 50% Government quota earmarked in Self Financing Colleges.
She belongs to a Socially and Educationally Backward Community
(SCBC).
3. As per Ext. P1 Government Order, G.O. (Rt.)
No.3096/2011/H&FWD dated 27.08.2011, fee concession was
provided for 14% of students allotted by the Commissioner for
Entrance Examinations to a Self Financing College belonging to BPL
families as per the State norms and 26% of students belonging to
SEBC category. Even according to the petitioner, rank alone is the
criteria for inclusion in the SEBC quota; whereas, income level and
rank are the criteria under BPL category. In fact, the certificates
produced by the students are liable for further verification.
Anyhow, based on the rank, the petitioner was included in the SEBC
category eligible for fee concession.
4. The case of the petitioner is that the 4 th respondent
namely Seenath P was not originally included in the list of eligible
candidates for fee concession under BPL category, since the income
verification had allegedly revealed that her family income was
Rs.38,000/- and all the seven seats available in the BPL category
was exhausted when two students with the same annual family
income of Rs.36,000/- i.e., the 5th respondent and one Shafriya
T.K., were included in the said category.
5. Thereafter, she approached this Court by filing W.P.(C) No.
19552 of 2013 claiming that there were errors in arriving at her
annual family income at Rs.38,000/- and that the Village Officer had
originally certified her family income as Rs.9000/-. The 5th
respondent, Ms. Shafriya T.K and the petitioner were made parties
in the said writ petition as respondent Nos. 4 to 6. It seems, the
petitioner has filed Exhibit P2 counter affidavit in the said writ
petition. The 4th respondent has submitted the income certificate
showing her family income as Rs.9000/-. However, according to
the petitioner, the same was subject to verification as mandated in
Exhibit P1 Government Order. It seems, on verification made by
the District Collector, it was reported that the family income of the
4th respondent is Rs.38,000/-. According to the petitioner, it was
due to the said reason that the 4 th respondent could not find a place
in the BPL category list for fee concession, as the students with
Rs.36,000/- as annual income has been included as 6th and 7th
candidate.
6. Anyhow, as per an interim order dated 11.08.2014 in W.P.
(C) No. 19552 of 2013, a further report was filed before this Court
stating that on the basis of the orders from the Public Grievance
Redressal Cell of the Chief Minister, a further enquiry was conducted
and the Tahsildar assessed the annual family income of the 4 th
respondent at Rs.11,000/- and a revised certificate was issued. In
the said circumstances, the said writ petition was disposed of as per
Exhibit P3 judgment dated 27.05.2015 directing the college to allow
the 4th respondent to continue her studies with the benefit of fee
concession. In the judgment, the Commissioner of Entrance
Examination was directed to consider the question whether the 5 th
respondent therein namely Sanitha C.M can be included in the list of
SEBC candidates, after affording an opportunity of hearing to the
candidates likely to be affected and to re-cast the list of candidates
eligible for fee concession.
7. In compliance with the directions in Exhibit P3 judgment,
the Commissioner for Entrance Examinations issued a notice dated
05.08.2005 stating that the petitioner was likely to be excluded
from the fee concession to accommodate the 5 th respondent who
was liable to be removed from the BPL list on inclusion of the
petitioner in W.P.(C) No. 19552 of 2013 i.e., the 4 th respondent
herein.
8. Anyhow, the first respondent has passed Exhibit P4 order
dated 25.08.2015 recasting the list. It is, thus, challenging the
legality and correctness of the said order, this writ petition is filed.
9. The case projected by the petitioner is that she is not liable
to be thrown out belatedly and that too, after preparing a list for fee
concession under BPL and SEBC category separately. It is also
pointed out that Exhibit P1 Government Order dated 27.08.2011
was issued based on the consensus arrived at between the
Government and the management of the Medical College. It is
further pointed out that as per Exhibit P1 Government Order, fee
concession to the candidates belonging to the BPL families is
available irrespective of their rank. Whereas, the candidates under
SEBC category are to be chosen based on their rank.
10. It is also contended that Exhibit P4 order is arbitrary and
illegal, since it is not passed in terms of Exhibit P1 Government
Order or Exhibit P3 judgment rendered by this Court. It is further
contended that the petitioner was not liable to be disturbed to
accommodate a student thrown out from the BPL list on
subsequent re-alignment of the list which was already finalised long
back. Other contentions are also raised with respect to the income
certificate issued to the 4th respondent.
11. The 4th respondent has filed a very detailed counter
affidavit with respect to the veracity of the income certificate
produced by her and the income reported by the District Collector.
Contentions are also raised justifying Exhibit P4 order passed by the
Commissioner for Entrance Examinations recasting the list.
12. The Commissioner for Entrance Examinations has filed a
detailed counter affidavit, wherein the details with respect to the re-
casting of the list are clearly shown. For proper appreciation of the
facts and the legal issues, I think, it is only appropriate that the
relevant portion of the counter affidavit is extracted and it reads
thus:
"In this connection, it is submitted that the petitioner, Akhila
Saleem, Thanduparakkal House, Mampad P.O., Thana, Malappuram
bearing application No.1127813 was a candidate for Entrance
Examination for admission to Professional Degree Courses, 2011.
She had applied for Engineering and MEdical Entrance
Examinations with RollNo.191799. She is eligible for Socially and
Educationally Backward Classes (SEBC) reservation under Muslim
(MU) category. She had attended the Engineering and Medical
Entrance Examinations and secured following rank 4719 for
Engineering Courses, 1517 for Medical Courses and 1518 for
Ayurveda Courses 2011. As per allotment published on
18.09.2011, she was allotted to MBBS Course at KMCT Medical
College Mukkom, Kozhikode under Muslim minority Quota for
Muslim from Kozhikode, Malappuram, Wayanad Districts.
4. It may be noted that the conduct of Entrance Examinations for
Admission to Professional Degree Courses 2011 in the State was
governed by the Prospectus approved by Government vide G.O.
(MS) No.403/2010/H.Edn. dated 28.12.2010 and published by this
respondent.
5. lt may be noted that as per Clause 5.4.2.(c) of the said
Prospectus, the admissibility of the claim for reservation of the
candidates under SEBC on the basis of the community and income
certificates issued by the Village Officers will be subject to re-
verification of the income certificates by the Tahsildar concerned
vide GO(Rt)No. 621/93/H&FWD Dated 12.03.1993. The petitioner
had produced Income Certificate along with the print out of the
Application stating her annual family income was Rs.1,82,000/, but
the annual income was changed as Rs.2,64,000/- after e-
verification from Revenue authorities.
6 Through this writ petition |WP(C) No.33438/2015] the main
contention of the petitioner is that the petitioner is entitled to
get the benefit of fee concession as her family belongs to poor
and unable to bear the financial burden. She argues that Exhibit
P4 is liable to be quashed.
7. In this connection it may be noted that kum.Seenath P had filed
a Writ Petition (Civil) [W.P.(C) No.19552 of 2013] stating that she
is entitled to get the benefit of fee concession. Kum. Seenath P
who is a student of MBBS course at KMCT Medical College,
Mukkom, Kozhikode had approached the Honble High Court of
Kerala with a prayer to direct Respondents 2 & 3 (Principal,
K.M.C.T. Medical College, Mukkom, Kozhikode and the
Commissioner for Entrance Examinations respectively) to extend
the benefit of Ext.P1 (G.O.(Rt) 3096/2011/H&FWD Dated,
27.08.2011) to the petitioner and to permit to continue her
studies by paying fee at concessional rate.
8. Kum.Seenath P had submitted an income certificate along
with the application therein the annual family income was
assessed as Rs.9,000/-. Based on clause 5.4.2(c) of the Prospectus
for KEAM-2011, the District Collector was directed to verify the
income certificates issued by the Village Officers to ascertain the
genuineness of the Income Certificates. As per re-verification, the
annual family income of the petitioners was re-assessed as
Rs.38,000/-. Aggrieved by this, the petitioners filed w.P.(C) No.
19552/2013 before the Hon'ble High Court of Kerala.
9. As per Order dated, 11.08.2014 in W.P.(C)No. 19552/2013, the
Hon'ble High Court of Kerala issued an order to the District
Collector, Malappuram to file a report after conducting an enquiry
on the annual income of the petitioners. As per this report, the
annual income of the petitioner for the year 2011-2012 was
assessed as Rs. 11,000/-.
10. As per Judgment dated 27.05.2015 in W.P.(C)No.19552/2013,
the Hon'ble High Court of Kerala allowed the Writ Petition as,
" 13......... The additional respondents 4 and 5 submitted that the
excluded candidates of BPL are liable to be accommodated in the
SEBC list on the basis of their rank. In such circumstances, I direct
the 3rd respondent to consider the question whether the 5th
respondent can be included in the list of SEBC candidates, after
affording an opportunity of hearing to the candidates likely to be
affected and to re-cast the list of the candidates eligible for fee
concession under the 2nd respondent within a period of 2 months
from the date of receipt of a copy of the judgment."
11. As per G.O.(Rt) No.3096/2011/H&FWD dated 27.08.2011
based on the Consensus arrived at between the Government and
the Managements of Private Self-financing Medical Colleges, the
fee concession to the candidates belonging to BPL families as per
the state norms/students having low annual family income
irrespective of rank or category, whereas candidates under SEBC
category is based on the rank. Consequent on the inclusion of
Seenath P under BPL/Low Income as per the Judgment dated
27.05.2015 in W.P.(C) 19552/2013, the candidate Sanitha C. M.
(Rank 1496, Income Rs. 36,000/-) will be moved out of BPL/Low
Income list to the fee concession list based on the criteria of SEBC
according to the rank position. In this situation the candidate
Akhila Saleem with Rank 1517 will be the affected candidate to be
thrown out of the fee concession list at KMCT Medical College,
Kozhikode.
12. In compliance to the Judgment of the Hon'ble High Court of
Kerala the affected candidate, Ms.Akhila Saleem was called for a
personal at 11 a.m. on 12.08.2015 before the Commissioner for
Entrance Examinations, vide reference read as 2nd paper cited.
13. As per the request of Akhila Saleem, the hearing fixed on
12.08.2015 had been postponed to 11 a.m. on 17.08,2015. As such,
the counsel authorised by Akhila Saleem had appeared for the
hearing and filed a request for adjournment of the hearing to
another date due to personal reasons. Accordingly, the hearing
was postponed to 21.08.2015 at 11 a.m.
14. As Such, Ms.Akhila Saleem appeard with her brother
Shri.Naseem for personal hearing. They stated that once a list is
finaliscd, there is no provision to recast the list. They were also
stated that she has been enjoying the fee concession benefits. It is
an additional burden for her to pay the entire arrears.
15. It may be noted that as per judgment dated 27.05.2015, the
Hon'ble High Court of Kerala directed the 3rd respondent, the
Commissioner for Entrance Examinations as to consider the
question whether the 5th respondent can be included in the list of
SEBC candidates'. As such a revised list of the candidates eligible
for fee concession benefit under SEBC & BPL under for MBBS/BDS
Courses 2011 the K.M.C.T. Medical College, Mukkom has been
prepared in compliance with thc Judgment of the Hon'ble High
Court of Kerala dated 27.05.2015 in W.P.(C) No. 19552 of 2013 and
forwarded to the Principal, K.M.C.T. Medical College, Mukkom,
Kozhikode, vide read as 3rd paper cited.
16. As such, as per re-cast list of the candidates eligible for fee
concession Ms.Akhila Saleem was excluded from the list of the
candidates eligible for fee concession benefit under SEBC & BPL
for MBBS/BDS Courses 2011 under the K.M.C.T. Medical College,
Mukkom, Kozhilkode. The above fact has been intimated to the
petitioner through this office Proceedings No.A2/4086/2013/CEE
dated 25.08.2015.
17. It may pertinent to be noted that since this respondent
excluded Ms.Akhila Saleem from the list of candidates eligible for
fee Concession benefit under SEBC & BPL for MBBS courses 2011
under KMCT Medical College, Mukkom, Kozhikode in the light of
the directions in judgment of W.P.(C) No. 19552 of 2013 dated
27.05.2015, the contentions made in the writ petition deserves no
merit."
13. The 5th respondent has also filed a detailed counter
affidavit justifying the stand adopted by the Commissioner for
Entrance Examinations.
14. I have heard the learned counsel for the petitioner Sri.
Athul Shaji, the learned Senior Government Pleader Sri. Joby
Joseph for the State and its officials and other learned counsel for
the party respondents, and perused the pleadings and materials on
record.
15. The sole question to be considered is whether any
manner of interference is required to the order passed by the
Commissioner for Entrance Examinations. On a perusal of Exhibit
P4 order, it is categoric and clear that a hearing was conducted by
the Commissioner for Entrance Examinations as per the directions
issued by this Court in Exhibit P3 judgment dated 27.05.2015.
16. The petitioner was represented before the Commissioner
for Entrance Examinations by an advocate and contended that she
is eligible for fee concession. It is further submitted that there is no
provision to include a candidate of BPL category to Socially and
Educationally Backward classes and that once the list is finalized,
there is no provision to recast the list. It was further pointed out
that for the past 4 ½ years, she has been enjoying the fee
concession benefits and therefore, it is an additional burden for her
to pay the entire arrears. The Commissioner for Entrance
Examinations, after considering the issues raised by the parties, has
found that as per the directions issued by this Court, the revised list
of candidates eligible for fee concession benefit under SEBC and BPL
for MBBS/BDS courses, 2011 in K.M.C.T Medical College has been
prepared and forwarded to the Principal, K.M.C.T Medical College,
Mukkam and as per the pre caste list of the candidates eligible for
fee concession, the petitioner is excluded from the list of
candidates.
17. In fact, the said order was passed by the Commissioner
for Entrance Examinations taking into account the annual family
income certificate produced by the 4th respondent as Rs.9000/.
However, based on clause 5.4.2(c) of the prospectus for KEAM,
2011, the District Collector was directed to verify the income
certificate issued by the Village Officer to ascertain the genuineness
of the income certificate and as per the re-verification, the family
income of the 4th respondent was re-assessed as Rs.38000/-.
However, as per the interim direction in W.P.(C) No. 19552 of 2013,
re-verification was done by the District Collector and on enquiry, the
annual income of the 4th respondent was found to be Rs.11,000/-.
18. As per Exhibit P1 Government Order, based on the
consensus arrived at between the Government and the
management of the private Self Financing Medical Colleges, the fee
concession to the candidates belonging to the BPL family is as per
the State norms/students having low annual family income
irrespective of rank or category; whereas, the candidates under
SEBC category is based on the rank. Consequent on the inclusion of
the 4th respondent under BPL category, as per the directions in
Exhibit P3 judgment dated 27.05.2015, the 5th respondent namely
Sanitha C.M., rank No. 1496, having the annual income of Rs.
36,000/-, was directed to be moved out of BPL/low income list to
the fee concession list based on the criteria of SEBC as per the rank
position. It was under the said circumstances, the petitioner with
rank No. 1517 had to be excluded to accommodate rank No. 1496,
the 5th respondent.
19. On a perusal of the impugned order, it can be seen that
the order was passed taking into account the guidelines contained
under Exhibit P1 Government Order dated 27.08.2011. In that
context, it is only appropriate that the relevant guidelines of Exhibit
P1 Government Order is extracted, and it reads thus:
"6. As per the consensus arrived at between the Government and
the Managements of Private Self-Financing medical Colleges, the
Managements have agreed to give concession in the fees
collected to the candidates belonging to BPL families as per State
norms/students having low annual family income upto a
maximum number of 14% of those allotted by the Commissioner
for Entrance Examination. The Management have agreed to give
fee concession to the students belonging to SEBC category
numbering upto a maximum of 26% of those allotted by the
Commissioner for Entrance Examination in each institution. The
details of concessional fees shall be as follows:
a) 14% of candidates from among those allotted by the
Commissioner for Entrance Examinations in each institution
coming under BPL families as per Kerala State norms irrespective
of rank or category need only pay an annual tuition of Rs.25,000/-
(Rupees Twenty Five Thousand only). If enough number of
candidates belonging to BPL category as above are not available,
the balance number of candidates will be allowed concessional
fees of Rs.25,000/-(Rupees Twenty Five Thousand only) per
annum to be selected from among those allotted by the
Commissioner for Entrance Examinations in each institution from
those having lower family income, irrespective of rank or
category. However SC/ST category of candidates, wh ọ already
enjoy fee concession benefits, will not be considered for the
above purpose. In addition, 26% of candidates who have been
allowed SEBC status by the Commissioner for Entrance
Examination in each institution shall also pay an annual tuition
fee of Rs.25,000/- (Rupees Twenty Five Thousand only). They will
be selected on the basis of thę rank. However, if the required
number of SEBC candidates is not available among the students
allotted by the CEE in the institution, the remaining number of
candidates will be selected from among the general category on
the basis of income, irrespective of rank or category with the
total number of SEBC students eligible for concessional fee not
exceeding 26% as above.
b) The same principle as explained in clause (a) is applicable to the
minority institutions also.
c) The fee benefits will be granted only after the closure of
allotments to Private Self financing Medical Colleges. Hence
candidates (except SC/ST) allotted to these institutions will have
to remit the fee of Rs. 1,38,000/- (Rupees One Lakh Thirty Eight
Thousand only) provisionally at the time of the allotment. The
Commissioner for Entrance Examination will refund the balance
amount to the candidates who will become eligible for fee
benefits after the completion of the allotment process, based on
the verification of income certificate to be produced by them.
d) Annual fee for SC/ST students shall be paid by the Government
to the concerned college, at the rate of uniform fees fixed by the
Government."
20. On an appreciation of the facts, law and the
circumstances, it can be clearly seen that the decision taken by the
Commissioner for Entrance Examinations, as per Exhibit P4 order,
cannot be said to be arbitrary or illegal, susceptible to be interfered
with in a proceeding under Article 226 of the Constitution of India.
Needless to say, the writ petition fails and accordingly the reliefs
sought for by the petitioner are declined.
21. However, at that point of time, learned counsel for the
petitioner submitted that the petitioner may be given the liberty to
approach the State Government seeking fee concession in the
peculiar facts and circumstances. Therefore, the liberty of the
petitioner to do so is left open and if any such application is filed,I
have no reason to think that the Government will not consider the
same in accordance with law taking into account the peculiar fact
situation in the case.
Writ Petition is disposed of accordingly.
sd/- SHAJI P. CHALY, JUDGE.
Rv
APPENDIX OF WP(C) 33438/2015
PETITIONER'S EXHIBITS:
P1 P1-TRUE COPY OF THE G.O(RT) 3096/2011/H&FWD
DATED 27/08/2011.
P2 P2-TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY
THE PETITIONER AS ADDL. 6TH RESPONDENT IN
W.P(C) 19552/2013.
P3 P3-TRUE COPY OF THE JUDGMENT DATED 27/05/2015
IN W.P(C) 19552/2013
P4 PR-TRUE COPY OF THE ORDER NO. A2/4056/2013/CEE
DATED 25/08/2015 OF THE IST RESPONDENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R4(a) TRUE COPY OF THE COMMUNICATION DATED
17.11.2012 RECEIVED BY THE 4TH RESPONDENT FROM
THE OFFICE OF THE DISTRICT COLLECTOR.
EXT.R4(b) TRUE COPY OF THE ANNUAL FAMILY INCOME
CERTIFICATE DATED 06.05.2013 ISSUED BY THE
VILLAGE OFFICER, KALIKAVU.
EXT.R4(c) TRUE COPY OF THE REPORT FILED BY THE DISTRICT
COLLECTOR, MALAPPURAM.
EXT.R4(d) TRUE COPY OF THE LIST OF 20 CANDIDATES ENTITLED
FOR FEE CONCESSION UNDER SEBC AND BPL
CATEGORY IN THE 3RD RESPONDENT COLLEGE ISSUED
BY THE 1ST RESPONDENT.
True Copy
PS To Judge.
rv
