IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 WA.No. 1405 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.16001/2011 Dated 20/09/2011 .................... APPELLANT(S): ------------------- JAHANARA.K.A., AGED 18 YEARS, D/O.K.A.ABDUL RAHIMAN, KUNNATH PEEDIKAYIL HOUSE, KUMARANELLOOR P.O., TRICHUR. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ---------------------- 1. THE ACADEMY OF MEDICAL SCIENCES, P.O.PRIYARAM MEDICAL COLLEGE, KANNUR-670 503, REPRESENTED BY ITS DIRECTOR. 2. THE PRINCIPAL, THE ACADEMY OF MEDICAL SCIENCES, P.O.PRIYARAM MEDICAL COLLEGE, KANNUR-670 503. 3. THE CO-OPERATIVE ACADEMY OF PROFESSIONAL EDUCATION, KERALA (CAPE), CO-BANK TOWERS, 1ST FLOOR, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 003, REPRESENTED BY ITS DIRECTOR. 4. THE PRINCIPAL, THE CO-OPERATIVE MEDICAL COLLEGE,KOCHI-683 104. 5. THE DIRECTOR, HIGHER SECONDARY EDUCATION, TRIVANDRUM-695 001. 6. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. R1 AND R2 BY SC SRI.P.V.SURENDRANATH. R5 AND R6 BY SR.GOVT.PLEADR SRI.BENNY GERVACIS. R3 AND R4 BY SC SRI.THOMAS ABRAHAM. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 1405 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2011 JUDGMENT Ramachandra Menon, J. Appellant is the writ petitioner. The prayers in the Writ Petition are as follows: “i) to declare the admissions in the non-resident Indian quota for MBBS course for the year 2011, made by respondents 1 to 4, as illegal; ii) to issue a writ of mandamus or any other appropriate writ or order, directing the 6th respondent to ensure that admissions for MBBS course under the Non-resident Indian quota for the year 2011 is conducted afresh, providing an opportunity to students who have passed the qualifying examination in March, 2011, to apply for admission in the NRI quota; iii) to issue a writ of mandamus or any other appropriate writ or order, directing respondents 1 o 4 to issue application form for MBBS course to the petitioner on payment of requisite fee and to accept the filled up application, process the same and grant admission to the petitioner for MBBS course under the NRI quota, if she is found eligible for admission, based on her qualifying marks; and W.A No. 1405 of 2011 -:2:- iv) to grant such other reliefs as this Honourable Court may deem fit in the circumstances of this case.” 2. The petitioner cleared the Higher Secondary Course in the year 2011 and marks were published on 31.5.2011. Being an aspirant to secure an admission to the professional course in Kerala, she had applied for participating in the Common Entrance Examination for admission to the professional colleges on 20.4.2011. However, she could secure only the 20200 rank in respect of the admission for the MBBS course and as such, admittedly, there was no chance to have secured admission in the merit quota. 3. Later, on realising that one of her near relatives (maternal uncle), who was working abroad, was prepared to sponsor her in the NRI quota, she made an enquiry with the respondents, particularly respondents 1 and 3 to secure admission under the said quota. When she was told that the admissions in the NRI quota had already been closed months ago, she approached this Court by filing the Writ Petition contending that the admission closed by respondents 1 and 3 W.A No. 1405 of 2011 -:3:- much earlier, ie., even before the publication of the results of the Higher Secondary Examination and that of the Common Entrance Test, was wrong and unjustified, more so, being contrary to the relevant terms of the Prospectus. The main contention raised by the appellant was that as per the terms of the Prospectus, a person, who applied for NRI quota had to satisfy the marks secured in the qualifying examination and attach the relevant testimonials in this regard, which was not possible for anybody when marks of the qualifying examination (Higher Secondary Examination) held in March, 2011 were published only on 31.5.2011, while the applications in respect of the NRI quota were stated as issued/received and the admissions were closed much earlier. It was, in the circumstances, that the appellant raised a specific prayer to declare the admission under the NRI quota as wrong and also to direct the respondents to issue application form to the appellant and to consider the application and to give admission accordingly. 4. On service of notice, the concerned respondents entered appearance and filed separate statement/counter affidavits. It W.A No. 1405 of 2011 -:4:- was contended by the respondents that admissions under the NRI quota stood on a separate footing by virtue of exemption provided under Section 3 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulations of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure, Equity and Excellence in Professional Education) Act, 2006. As per the relevant provisions of law, it was stated that admission to the 15 seats earmarked as non-resident citizens was to be made on the basis of the marks obtained in the qualifying examinations and a personal interview and further that nothing prevented the appellant from applying for admission under the NRI quota on time, notwithstanding the stipulation to have furnished the marks and copies of the relevant testimonials in this regard. 5. During the pendency of the Writ Petition, taking note of the nature of contentions, the learned Single Judge passed an interim order, whereby one seat for MBBS was ordered to be reserved in the first respondent-College. Such an order was passed by the learned Judge taking note of the submission made W.A No. 1405 of 2011 -:5:- by the appellant/writ petitioner that one of the candidates, who originally got admission to MBBS course had relinquished the seat. However, it was subsequently brought to the notice of the Court that the said seat was filled up by giving admission to one candidate by name Jamsheera before communicating the court order, under which circumstances, the said student was impleaded as the additional 7th respondent. 6. After considering the rival contentions, the learned Single Judge observed that the stand of the concerned respondents in the matter of closing the NRI admission much prior to the date of declaration of the results of the qualifying examination, contrary to the terms of the Prospectus stipulating to provide the marks obtained in the qualifying examination to be specified in the application form also furnishing copies of the relevant testimonials was hence not correct or proper. However, taking note of the submission made by the learned counsel for the writ petitioner as well as the first respondent that the seat filled up by admitting the 7th respondent was remaining vacant as the said respondent did not join the College, it was held that it was W.A No. 1405 of 2011 -:6:- unnecessary to probe into the matter any further, but for directing the first respondent to permit the writ petitioner to submit an application for admission in the NRI quota and have it considered along with other applications, if any. Accordingly, the Writ Petition was disposed of in the following terms: “10. Therefore, in the peculiar facts and circumstances of the case, it is directed that the petitioner shall approach the first respondent and thereupon an application form for admission in the NRI quota shall be issued to her and if the application is submitted without any further delay the same shall be considered along with other applications that are already received by the 1st respondent.” 7. The case of the appellant is that though the appellant was permitted to apply for admission to the MBBS course in the NRI quota and a personal interview was conducted on 27.9.2011, it was subsequently revealed to her that the seat had been given to another student, who had a better claim, which made her to approach this Court again by filing this appeal. 8. After hearing the learned counsel for the appellant and also on going through the materials on record, this Court finds W.A No. 1405 of 2011 -:7:- that the idea and understanding of the appellant to the scope of the verdict passed by the learned Single Judge is quite wrong and misconceived and does not call for any interference. Taking note of the particular facts and circumstances, the learned Single Judge virtually allowed the third prayer raised in the Writ Petition, directed the concerned respondents to issue application form for MBBS course under the NRI quota to the petitioner, to accept the filled up application to process the same and to grant admission, if she is found eligible for admission based on the credentials. The verdict passed by the learned Single Judge was very specific in so far as the direction given was to have the application considered along with other applications as clearly observed in paragraphs 9 and 10 of the said verdict. Admittedly, the appellant has been given application for admission to the NRI quota in respect of the current admission and she was interviewed on 27.9.2011, since the direction was to have it considered along with other applications and if the concerned candidate is having lesser credentials than the appellant, or if such admission is contrary to the relevant norms. So also, if the W.A No. 1405 of 2011 -:8:- appellant has got a case that the course and procedure pursued by the first respondent was contrary to the understanding and in violation of the mandate given by the learned Single Judge, it is still open to the appellant to proceed with other appropriate steps by pursuing appropriate remedies before the learned Judge in respect of the alleged violation, if any, with regard to which, this Court does not intend to express any opinion. We find that the appeal is devoid of any merit and hence, interference is declined and the appeal is dismissed. J.Chelameswar, Chief Justice. P.R.Ramachandra Menon, Judge. vgs