IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WP(C).No. 23716 of 2010(L) -------------------------- PETITIONER(S): --------------- MALAVIKA S.RETNA, KEEZHATHIL VEEDU, KADINAMKULAM, PUTHENKURICHI P.O., THIRUVANANTHAPURAM-695303. BY ADV. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA SMT.S.MEERA RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE COMMISSIONER OF ENTRANCE EXAMINATION, 5TH FLOOR, HOUSING BOARD BUILDINGS, SHANTHI NAGAR, THIRUVANANTHAPURAM-695 001. GOVERNMENT PLEADER SRI. NARAYANAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.23716 OF 2010 (L) -------------------------------------------------- Dated this the 30th day of August, 2010 J U D G M E N T Prayer sought in this writ petition is to direct the respondents to consider the petitioner for allotment to B. Arch course, as per the conditions stipulated in Ext.P1 prospectus. Petitioner also seeks a declaration that she is entitled to be considered for allotment for admission to B. Arch course and that the respondents are bound to consider her candidature, on the basis of Ext.P5, the higher options exercised by the petitioner. 2. Facts of the case are that, in pursuance to Ext.P1, the prospectus for admission to professional Degree Courses, 2010, petitioner submitted an application for admission and in Ext.P2 ranked list of candidates qualified for B. Arch course, she was assigned rank No.78. In pursuance to Ext.P1 prospectus, as per Ext.P4, petitioner exercised her options to 5 colleges, Viz. Thiruvananthapuram Engineering College, T.K.M. Engineering College, Trissur Engineering College, MES Engineering College and Devaki Ammals Guruvayurappan College of Architecture. On the WPC.No.23716 /2010 :2 : basis of her ranking in Ext.P2, the 2nd respondent issued Ext.P3 allotment memo, wherein petitioner was alloted to MES College of Engineering, Kuttipuram, the 4th college opted by the petitioner. 3. According to the petitioner, on the basis of the allotment, though she joined the said College, by Ext.P5 her option was altered retaining the higher options, viz. Thiruvananthapuram Engineering College, T.K.M. Engineering College and Trissur Engineering College. However, respondents refused to allot the petitioner despite the availability of vacant seats in these colleges. This was on the strength of Annexure R2(a), GO(MS). No.110/2010/Higher Education dt.3.6.2010. Petitioner contends that in terms of the provisions contained in Ext.P1 prospectus, even if a candidate is alloted to a college opted by her, the candidate is entitled to have the higher options retained and allotted to such of those colleges, depending upon the ranking and availability of seats in those colleges. It is stated that the contrary stand taken by the respondents relying on Annexure-R2(a) and the note incorporated in Ext.P4 is therefore illegal. 4. The alternate contention raised by the petitioner is that, going by the statement filed and the contents of Annexure-R2(a), WPC.No.23716 /2010 :3 : which has been issued pursuant to the agreement entered into between the Government of Kerala and the 60 Private Self Financing Engineering Colleges,this Government Order can apply only in respect of admissions in the 60 Private Self Financing Engineering Colleges. Petitioner submits that since her higher options are in respect of Government Engineering Colleges and a Government Aided Engineering College, Ext.R2(a) or the note in Ext.P4, are of no relevance. 5. On the other hand, the learned Government Pleader submits that clause 1.6 of the prospectus provided that allotment of seats from the State Rank Lists for all courses in self-financing colleges will be made in accordance with the orders of the Hon'ble Supreme Court of India, High Court of Kerala or orders of the Govt. of Kerala/Govt. of India/as per the law in existence at the time of Centralized Allotment Process. It is stated that in view of the agreement that Government of Kerala had entered into with the Association formed by the managements of 60 Self Financing Colleges, Government of Kerala had issued Annexure-R2(a) order dated 3.6.2010 and that clause 7, 8 and 9 thereof provided that candidates desiring allotment/admission to any of the 60 Private WPC.No.23716 /2010 :4 : Self Financing Engineering Colleges can seek only up to 4th allotment and that candidates who got allotment to any of those colleges in the 4th allotment, will not be eligible for further allotment and that their existing higher options will be treated as invalid. It is further stated that in addition to Annexure R2(a), the 2nd respondent had also issued Ext.P4 containing a note that, in respect of those allotted to Private Self Financing Engineering Colleges in the 4th allotment there will be no further allotment. Learned Government Pleader therefore contended that in the light of clause 1.6 of the prospectus read with Annexure-R2(a) and the note in Ext.P4, the higher options exercised by the petitioner got automatically cancelled when the petitioner was allotted to the MES College. It is therefore contended that the claim of the petitioner for further allotment to the colleges opted by her as seen from Ext.P5 is unsustainable. Government Pleader further contended that in the absence of any challenge either to Ext.P4 or to Annexure-R2(a) order, the petitioner cannot seek any relief in this writ petition. 6. I have considered the submissions made by both sides. 7. Ext.P1 prospectus was issued by the Government of Kerala and the conditions of the prospectus govern the admission to the WPC.No.23716 /2010 :5 : professional courses, 2010. Clause 11 of the prospectus provides for the Centralized Allotment Process and Online Submission of Options. Among the various provisions, clause 11.4.2 provides for registering options, 11.4.5 provides for registering of options in respect of candidates included in different ranked lists. Claus 11.5 provides for the procedure for registering options and 11.5.6 provides for registering of options and saving/revising the options registered. Clause 11.5.9 provides for rearranging option priority. Clause 11.6.4 provides for cancellation of options/alteration of priority of options after each allotment. A reading of these clauses in its totality shows that based on the options exercised by the candidates, even if one is alloted to a particular college, the candidate is entitled to retain higher options and to get allotted to those colleges, depending upon the ranking and availability of seats. Therefore, under the prospectus, while the candidates have such a right, Government of Kerala issued Annexure-R2(a) order. A reading of this order shows that this order was issued on the strength of clause 1.6 of the prospectus, which reads as under. WPC.No.23716 /2010 :6 : “Allotment of seats from the State Rank Lists for all courses in Self-financing colleges will be made in accordance with the orders of the Hon'ble Supreme Court of India/ Hon'ble High Court of Kerala or orders of the Govt. of Kerala/Govt. of India/as per the law in existence at the time of Centralized Allotment Process(CAP) and will be notified separately.” 8. This clause, as is evident from the clause itself, applies only in respect of allotment to Self Financing Colleges and can have no impact in so far as allotment to Government Colleges or aided colleges. Considering t the fact that Annexure R2(a) order has been issued on the strength of clause 1.6 of the prospectus, the applicability of clauses 7,8 and 9 of the order, which are now relied on against the petitioner, has to be confined only to self Financing Colleges. If that be so, these clauses can have application only in respect of allotment to Self Financing Colleges and not to Government Colleges or Aided Colleges. Therefore, clause 8 providing that candidates who got allotment to any of the Self Financing Engineering Colleges in the 4th allotment, will not be eligible for further allotment, only means that ineligibility for further allotment is only so far as Self Financing Colleges are concerned and not Government Colleges and Aided Colleges. Since higher options exercised by the petitioner, as per Ext.P5, are only in WPC.No.23716 /2010 :7 : respect of Government Colleges and aided colleges, Annexure-R2 (a) cannot stand in the way of petitioner against seeking admission to those colleges. 9. Similar is the case of Ext.P4 order, the note of which is relied on against the petitioner. A literal translation of the note mentioned in Ext.P4 shows that the further allotment mentioned therein is only in respect of Self Financing Engineering Colleges. If that be so, necessarily the plea of the petitioner that Ext.R2(a) or Ext.P4 cannot stand in the way of the petitioner in claiming admission to the colleges of her higher option, mentioned in Ext.P5 has to be upheld. If that be so, the refusal of the respondents to consider the claim of the petitioner for allotment to Thiruvananthapuram Engineering College, T.K.M. Engineering College and Trissur Engineering College cannot be accepted, provided there are vacant seats available in for B. Arch course. In this view of the matter, there is no substance in the contention that in the absence of challenge against Ext.P4 and Annexure R2(a), petitioner is eligible for the relief sought for. Therefore the writ petition is disposed of directing the 2nd respondent to consider the petitioner for allotment to B. Arch. WPC.No.23716 /2010 :8 : course to the colleges mentioned in Ext.P5 for the next allotment. This shall be done as expeditiously as possible. (ANTONY DOMINIC) JUDGE vi/