IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 WP(C).No. 24228 of 2010(C) -------------------------------------- PETITIONER(S): ---------------------- 1. VISAKH KRISHNAN, C/O.AJAYAKUMAR P KIZHAKKE AMBALATH, KULANGARA BHAGAM, CHAVARA PO, KOLLAM 691 583. 2. RONY VARGHESE, S/O.VARGHESE T.J THAIVALAKKATTU HOUSE, VETTICAL PO CHERTHALA, ALAPPUZHA 688 587. 3. ANEESH M, S/O.MOHANAN KUNNIL VEEDU, NEDUVELI, KONCHIRA PO THIRUVANANTHAPURAM 695 615 4. ABHIJITH M, S/O.R.MUKUNTHA KUMAR PADINJARE MANGALATH, PALLIPPURAM PO CHERTHALA, ALAPPUZHA 688 541 5. ANOOP AUGUSTIAN S/O.N.AUGUSTIAN, KODIYATTU HOUSE ,MAILAKAD KANNANALLOOR PO, KOLLAM 691 576 6. TSERING YRANGZOM, TIBETAN HOSE SCHOOL, HAPPY VALLEY, MUSOORIE GADENLING-248179. UA, INDIA. 7. NASIYA NAVAS, D/O. SHEENA M, NIVI HOUSE, THAZHAMEL, ANCHAL, KOLLAM 691 306. 8. VIDYA MOL.V,D/O.CHANDRASEKHARAN NAIR K VIDYA BHAVAN, KARIKKATTIL VEEDU KOLIYAKODE PO, THIRUVANANTHAPURAM 695 607 9. LALU C.P, S/O.KUNGAN P LALU NIVAS, MUNDIYODE, CHERUVANCHERY PO CHITTARIPARAMBA (VIA) KANNUR 670 650. 10. SHIJU C.P, S/O.RAJARAM P CHENNAPOIL HOUSE, NARIKODUMALA PO KANNUR 670 693. 11. VISHNU .S.S, S/O.SURESH KUMAR S T/C 22/82,THYCADU, POUNDKULAM, THIRUVANANTHAPURAM -14. 12. RAHUL KRISHNA, S/O.KRISHNAN KUTTY HARISH BHAVAN, PALAKKADU, ADHINALOOR PO, KOLLAM 691 573. -2- WP(C) NO.24228/2010 13. SIVAPRASAD.S, S/O.SIVANKUTTY NAIR M KAILASAM, IVARKALA NADUVIL, PUTHENAMBALAM PO, KOLLAM. 14. SUDHEESH.C.S, CHAKKUMMOLALE HOUSE AIRAPURAM P.O., KUNNAKURUDY, ERNAKULAM. 15. ANOOP VARGHESE, S/O. P.T. VARGHESE POOVATHINKAL HOUSE, VELLIMANAM PO, PAYAM VIA KANNUR. 16. PRAVEENA SUBHASH M.S, D/O.SUBHASH M.K MAZHUVANCHERY HOUSE, ITHITHANAM PO, CHANGANASSERY , KOTTAYAM. 17. RESHMA.T.THAMBI, D/O.THAMPI O.M TC 19/1133 (2) MAILATHU LANE NEAR VIJAYAMOHINI MILL, THIRUMALA PO, THIRUVANANTHAPURAM -12 18. LEENA C.S, D/O.K.SURENDRAN TC 19/721, MUDAVANMUGHAL POOJAPPURA PO, THIRUVANANTHAPURAM -12 19. SRUTHIMOL V.V, D/O.V.N.VASUDEVAN VELLAPANATTU HOUSE, ARTHUNGAL,CHERTHALA,ALAPPUZHA 20. ATHIRA P.S, D/O.SURESH VARUVILAKATHU VEEDU, AITHIYOOR PO,BALARAMAPURAM PO THIRUVANANTHAPURAM. 21. NANDU KRISHNA .U, S/O.UNNIKRISHNAN G ANITHA BHAVAN, PUTHUVAL PUTHE VEEDU POTHENKODE PO,THIRUVANANTHAPURAM 22. CLINTON C, S/O.T.CLEETUS JOEJO BHAVAN, KUZHATHIL, PULLUVILA PO THIRUVANANTHAPURAM 695 526 23. RIYA .E,E, D/O.D.K.ELDO EDAPATTU HOUSE, UPPUMANA, KARIMKAYAM PO PALAKKADU 678 706. 24. JITHYA JOY, D/O.JOY KUDIYIRICKAL HOUSE, KONNAKAMALI PO , IDUKKI. 25. LIBI K.R, D/O.RAVEENDRAN K.S KUNNIL HOUSE, VITTIYADI, MANUDUKKOM PO CHEGALA VIA, KASARAGOD 671 541 26. JESMY JOSE, D/O.K.P.JOSE KUTTIKANDAM HOUSE,KUTTICHIRA PO, PONNAMBIOLY, THRISSUR 680 724 27. AKHILA R.B, D/O.BHAVANACHANDRAN NAIR R.B SADANAM, KALLIYOD, PANAVOOR PO, NEDUMANGADU, THIRUVANANTHAPURAM. 28. ANOOP KRISHNAN B, S/O.GRACY BINU KRISHNA, AYYAPPANKUZHI. PARUTHIKUZHI PO NEDUMANGADE 695 541 -3- WP(C) NO.24228/2010 29. AKHIL A.S, S/O.C.ANIRUDHAN, BHASKARA NILAYAM PATTARIYIL,KATTAYIKONAM PO THIRUVANANTHAPURAM 695 584. 30. JIJIMOL C.S, USHABHAVAN VELAVOOR KOLIYAKODU PO, VENJARAM MOODU, THIRUVANANTHAPURAM 695 607 31. VIGNESH V.G, S/O.VENUGOPAL MANALIKARA PUTHEN VEEDU, PAKALOOR, PALLICHAL P THIRUVANANTHAPURAM 695 020 32. SREEJITH.K, S/O.SREEDHARAN K THALIYIL, KANAKALAYAM, KALIASSERY, KANNUR 33. SOORAJ S.B, S/O.BINDU LEKHA, KRISHNALAYAM, SN NAGAR, KULATHOOR PO, THIRUVANANTHAPURAM 695 583. 34. SARAN C.S, S/O.SURESH KUMAR N PADAYANI ROAD, KRS 139, MRUTHUMKUZHI VATTIYOORKAVU PO,THIRUVANANTHAPURAM 695 013 35. SIJIN .N, S/O.N.NASIMUDEEN SAJINA MANSIL, KRA 41, CPT, NETTAYAM PO THIRUVANANTHAPURAM 695 013 . 36. AMEERSHA.A, S/O.ALIKHAN A V.K.HOUSE, AMARAVILA PO,THIRUVANANTHAPURAM 695 122 37. VISHNU.V.K, S/O.KUTTAPPAN, VATTATHARAYIL MULANTHURUTHI PO, INCHIMALA,ERNAKULAM. 38. ANEETTA .F, D/O.FERMAN, T/C 69/527, NADUTHURA, POONTHURA PO, THIRUVANANTHAPURAM -26. 39. CHITHRA.S, D/O. K.SANKARAN KIZHATHIL VEEDU, NEAR GMHSS, ATTINGAL 695 101 40. CHARRYMON SUKUMARAN KANJIRATHIN MOOTTIL, PIKAVALA PO CHANGANASSERY 686 537 41. ATRHAM SAJEEVE, VALLIYAKATTU HOUSE PATTATHANAM, DIVYA NAGAR, H.NO-16,KOLLAM 42. ARUNIMA RAMANAN, AKHIL NIVAS, PERAYAM MULAVANAP PO KUNDARA ,KOLLAM 691 503 43. NISHAD R, VELIYIL HOUSE KALLUTHAZHAM, MAITHRI NAGAR, KOLLAM 691 004. 44. RAHUL R, SOBHANA VILASAM, KULATHUMAN PO. BY ADV. SRI.GEORGE POONTHOTTAM -4- WP(C) N0.24228/2010 RESPONDENT(S): ------------------------- 1. LAKSHMI BAI NATIONAL COLLEGE OF PHYSICAL EDUCATION,KARIAVATTOM,THIRUVANANTHAPURAM 695581 REPRESENTED BY THE PRINCIPAL. 2. UNIVERSITY OF KERALA, THIRUVANANTHAPURAM 695 034, REPRESENTED BY THE REGISTRAR. 3. DR.EUGIN SUNIL, DIRECTOR OF PHYSICAL EDUCATION UNIVERSITY OF KERALA, THIRUVANANTHAPURAM.695034. R1 BY SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE SRI.C.P.KUNJHIKANNAN R2 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.24228/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE RELEVANT PAGES OF THE PROSPECTUS. P2 COPY OF THE LIST OF CANDIDATES. P3 COPY OF THE NOTICE DATED 19/7/10. P4 COPY OF THE TRANSFER CERTIFICATED OF THE PETITIONERS. P5 COPY OF THE NOTIFICATION NO.CE/LNCPE/EE/07/2010 DATED 27/7/2010. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE PROSPECTUS OF THE 1ST RESPONDENT COLLEGE FOR THE YEAR 2010-11. R1(B) COPY OF THE LETTER NO.AC.BI/LNCPE ADMNS./2010-11 DATED 19/6/2010. R1(C) COPY OF THE LETTER FROM THE 3RD RESPONDENT TO THE REGISTRAR OF THE UNIVERSITY DATED 7/7/2010. R1(D) COPY OF THE LETTER DATED 7/7/2010 FROM THE REGISTRAR TO THE PRINCIPAL OF THE 1ST RESPONDENT. R1(E) COPY OF THE SELECTION LIST WITH ISSUED BY THE 1ST RESPONDENT. R1(F) COPY OF THE LETTER DATED 8/7/2010 FROM THE PRINCIPAL OF THE 1ST RESPONDENT TO THE REGISTRAR. R1(G) COPY OF THE LETTER DATED 12/7/2010 FROM THE PRINCIPAL OF THE 1ST RESPONDENT TO THE REGISTRAR. R1(H) COPY OF THE COMMUNICATION DATED 12/7/2010 FROM THE PRINCIPAL OF THE COLLEGE TO THE SPORTS AUTHORITY OF INDIA. R1(I) COPY OF THE MINUTES OF THE MEETING HELD ON 16/7/2010. R1(J) COPY OF THE RANK LIST. R1(K) COPY OF THE LETTER DATED 21/8/2010 ISSUED BY THE CONTROLLER OF EXAMINATIONS TO THE PRINCIPAL. R1(L) COPY OF THE LETTERDATED 14/10/2010 OF THE 2ND RESPONDENT. R2(A) COPY OF THE COMMUNICATION DATED 20/6/09 GIVEN TO LNCPE. R2(B) COPY OF THE LETTER DATED 25/06/2010 NO.AC.BI/LNCPE ADMNS./2010-11. R2(D) COPY OF THE MINUTES OF THE MEETING HELD ON 16/7/2010. R2(E) COPY OF THE RANK LIST OF CANDIDATES QUALIFIED FOR ADMISSION IN THE SELECTION PROCESS. /TRUE COPY/ sts P.A.TO.JUDGE ANTONY DOMINIC, J. ------------------------- W.P (C) No.24228 of 2010 -------------------------- Dated this the 15th November, 2010 J U D G M E N T The prayer sought in this writ petition are to quash Ext.P3 and to direct the first respondent to proceed with the admission for Bachelor of Physical Education Course 2010-2011 on the basis of the selection process held on 7th and 8th of July, 2010 and Ext.P2 select list. 2. The facts of the case are that Ext.P1 is the prospectus published by the first respondent college, which is affiliated to the second respondent University, for admission to various courses including Bachelor of Physical Education (BPE). Clause 10.1.2 of the prospectus prescribes the admission tests and it being relevant, is extracted below for reference. "10.1.2 ADMISSION TESTS A. Physical Fitness Test. AAHPER Youth Fitness Test comprising the following items will be used to assess physical fitness. 1. Pull-ups (boys)/Flexed arm Hang (Girls) 2. Flexed-leg Sit-ups for one minute 3. Shuttle Run (30ft x 4) 4. Standing Broad Jump 5. 50-Yard Dash W.P (C) No.24228 of 2010 2 6. 600-Yard Run Note: This is a qualifying test. Those who fail to secure 50% of the composite score of 60 points of the test battery shall not be eligible for further testing. B. Academic Test (i) Test in General Knowledge and English (50 marks) Note: Candidates who secure less than 40% marks will not be eligible for further testing. C. Game/Sport Playing Ability Test (50 marks) Each candidate will be required to opt one game/sport of his/her choice for assessment out of the games/sports included in the schedule of I.O.A or Association of Indian Universities, Sports Division. However, the College reserves the right to delete any game/sport from the list on administrative considerations. Note: Candidates must secure a minimum 50% marks in this test. The merit for admission shall be reckoned on the basis of total marks obtained by a candidate in tests B and C subject to a minimum of 50% of the combined total (100 marks) CANDIDATES SELECTED AND THEIR PARENTS MUST FACE AN INTERVIEW COMMITTEE CONSTITUTED BY THE PRINCIPAL" W.P (C) No.24228 of 2010 3 3. Pleadings show that subsequently with the concurrence of the University, admission tests were scheduled on 7th and 8th of July 2010. According to the college, the second respondent University had deputed the third respondent as its representative to supervise the admission tests. As per the averments in the counter affidavit filed by the first respondent, 169 candidates were present for the test, and despite the assurance that the 3rd respondent will be present at the commencement of the test, he was absent. According to the Principal, since large number of candidates were present for the tests, he was constrained to start the test and the results of the test were evaluated by the Faculty Members of the college and 137 candidates were short listed. 4. It is stated that the third respondent came to the college by about 10 a.m and without participating in the selection process he returned immediately. Petitioners allege that thereupon the third respondent submitted Ext.R1 (c ) complaint to the University alleging that the W.P (C) No.24228 of 2010 4 question papers of the written test were valued by the teachers of the first respondent, without the involvement of anybody from the university and that he understood that the question papers were leaked out on the previous day. On this basis he recommended for cancellation of the written test and to conduct a new test under the supervision of the University. 5. On 7.7.2010 itself, the University issued Ext.R1 (d) requiring the college to stop further admission procedures and to treat the written test as cancelled. On 8.7.2010, the Principal of the college submitted Ext.R1 (f) to the University explaining the details of the selection process that was conducted and denying the allegations of the 3rd respondent about the question paper leak and the other irregularities alleged by the 3rd respondent in Ext.R1 (C). Despite having received Ext.R1(d), on 10.7.2010, the college published Ext.P2, selection list, containing the list of candidates selected for admission to Bachelor of Physical Education for 2010-2011. A reading of Ext. P2 shows that candidates were also required to W.P (C) No.24228 of 2010 5 attend an interview on 19.7.2010. This list contained the names of all the petitioners in this writ petition. 6. It would appear from para 14 of the counter affidavit filed by first respondent that subsequently the Director General of the Sports Authority of India deputed the Secretary and Director of the Sports Authority of India to discuss the issues that arose on account of the complaint made by the 3rd respondent and the orders that were issued by the University with the Vice Chancellor of the University and to arrive at an amicable solution. Counter affidavit also shows that accordingly a meeting was held in the chamber of the Vice Chancellor of the University on 16.7.2010, which was attended by among others, the Principal and that after detailed discussions, it was unanimously decided to cancel Ext.P2 selection list and to conduct a fresh test. Ext.R1(I) minutes of the said meeting also shows that it was also decided that the Registrar of the University shall enquire into the report regarding the question paper leakage. W.P (C) No.24228 of 2010 6 7. Pursuant to the meeting and the decisions that were taken, to which the Principal is also a party, the Principal of the 1st respondent issued Ext.P3 on 19.7.2010, cancelling Ext.P2 and stating that a fresh date for re-test for eligible candidates for BPE admission will be published. It would appear that in pursuance to the above, the University issued Ext.P5 notification dated 27.7.2010 scheduling the entrance examination as contemplated in Ext.P1 prospectus on 04.08.2010. Accordingly, admission tests were held once again and thereafter on 13.8.2010 Ext.R1 (J), selection list was published. The candidates included in Ext.R1 (J) were interviewed and finally the University issued Ext.R1 (K) letter to the Principal, to take further action based on Ext.R1 (J). 8. In the meantime, the petitioners, who were included in Ext.P2, filed this Writ Petition seeking to quash Ext.P3 and to require the first respondent to proceed with Ext.P2 and also for a declaration that the University has no authority to take over the test as notified in Ext. P5. At this stage, it should also be mentioned that in the re-test W.P (C) No.24228 of 2010 7 conducted pursuant to Ext.P5, all the Petitioners, except Petitioner Nos.8 to 10, 21, 23, 24, 29, 30, 35 and 40, were successful. 9. In this writ petition, this Court passed an order on 7.9.2010 permitting the college to finalise the admission based on Ext.R1 (j) ranklist and on that basis admissions have been completed. Therefore, at present, the grievance raised in this writ petition survives only in so far as the petitioners who are unsuccessful in the second round of selection are concerned. 10. The first contention raised by the learned counsel for the Petitioners is that as per Ext.P1 Prospectus issued by the first respondent, there is no power conferred on the University to prescribe the eligibility criteria or to take over the admission. It is also his contention that the cancellation of the selection list as per Ext.P3 was instigated by the 3rd respondent who filed Ext. R1 (C) complaint to the University. It was contended that the 3rd respondent was interested in certain candidates and that he raised complaints only for the reason that the candidates W.P (C) No.24228 of 2010 8 in whom he was interested, were not included in Ext.P2 select list prepared by the first respondent. It is stated that there was absolutely no basis for the complaint and as the selection process held was fully in compliance with the Prospectus, there was no justification for cancelling Ext.P2 selection list. 11. As far as the first respondent college is concerned, they have filed a detailed counter affidavit justifying the selection process conducted by them. After explaining the entire facts of the case, they conclude their counter affidavit expressing their willingness to accept Ext.P2 or Ext.R1 (J) select lists, as per the directions to be issued by this Court. 12. In so far as the University is concerned, the University submits that the provisions contained in Section 25 of the Kerala University Act, empowers the University to prescribe qualification for admission of students and also to make provisions for admission to various courses on the basis of merit. It is the contention of the University that when complaints were received, discussion was held and W.P (C) No.24228 of 2010 9 that based on Ext.R1 (I) minutes of the meeting, Ext.P2 selection list was cancelled. Therefore, the University submits that the cancellation of Ext.P2 as per Ext.P3 cannot be faulted and that the admission conducted pursuant to Ext.R1 (J) is liable to upheld. 13. At the outset, It is to be stated that there are allegations raised against the 3rd respondent, who was deputed by the second respondent University to supervise the selection process that was held on 7th and 8th of July, 2010. However, despite service of notice, he has not chosen to enter appearance before this Court or to deny the allegations levelled against him. Therefore, petitioners are justified in contending that the allegations against the 3rd respondent are uncontradicted and that allegations should be taken as correct. Be that as it may, in my view, since any decision in this case will have an impact on the fate of the students who are selected for admission, this Court will not be justified in acting entirely upon the uncontradicted allegations against the 3rd respondent and should decide the issues referring to the rival pleadings and the other W.P (C) No.24228 of 2010 10 materials which are available on record. 14. Before the factual issues are addressed, I shall first deal with the contention that the University had absolutely no power to lay down the eligibility for admission or interfere with the selection process. First of all, such a contention has not been raised by the college. On the other hand, college accepted the competence of the University to order a fresh selection and this is evident from Ext.R1(I) minutes of meeting. That apart, Section 25 of the Kerala University Act, 1974 lays down the powers and duties of Academic Council for admission of students to the various courses of studies and the examinations and the conditions under which the exemptions may be granted. 15. Section 25(VI) provides that the University is empowered to make provision for admission of students to the various courses of studies on the basis of merit in order to maintain standards of education. Counter affidavit filed by the 1st respondent College also shows that the prospectus was forwarded to the University for approval. W.P (C) No.24228 of 2010 11 Therefore, having regard to the stand taken by the College and also in the light of the provisions contained in Section 25 of the University Act, I am not in a position to accept the plea of the counsel for the petitioners that in the matter of admission to the first respondent, which is affiliated to the second respondent University, the University had no power in the matter of admission of students. Therefore that contention of the petitioners is only liable to be rejected and I do so. 16. What remains is the question regarding the propriety of cancellation of Ext.P2 selection list. Evidently, the 3rd respondent made Ext.R1 (c) complaint. There are two allegations in Ext.R1 (c) complaint. One was that the valuation was done by the college concerned without any participation of the representative of the University. Second allegation is that question papers had leaked on the previous day. It is a fact that in Ext.R1 (f) reply filed by him, the Principal of the College had refuted the allegations. W.P (C) No.24228 of 2010 12 17. However, paragraph 14 of the counter affidavit filed by the Principal shows that with the involvement of the Sports Authority of India and in the presence of the Vice Chancellor, a meeting was held in which the Principal was also present. In that meeting, all the participants including the Principal unanimously agreed for an enquiry by the Registrar into the allegation of question paper leakage. Ext.R1(i) minutes also show that it was also decided to cancel the admission test held on 7th and 8th of July, 2010. Therefore, college itself had accepted the existence of allegation regarding the question paper leakage and also agreed for cancellation of selection process held on 7th and 8th of July, 2010. It is also seen that in that decision, all the 137 students who were shortlisted in the selection process on 7th and 8th of July, 2010 were agreed to be given another chance to appear in the second round of selection process. Accordingly all the petitioners participated in the second round of selection process and except 10 of them, all others got selected also. Therefore, in such circumstances since the college itself had agreed W.P (C) No.24228 of 2010 13 for the cancellation of selection process and taking note of the fact that students were also given another chance in the second round of selection process, I do not think that any candidate can complain that any of their vested rights was infringed by the aforesaid decision of the college, University and the Sports Authority of India. Further, Ext.P2 selection list, was not a final list, since candidates were required to attend an interview also, which again was a condition of the Prosectus. That apart, it is the settled position of law that a person who is included in a select list does not acquire any indefeasible or vested right; but has only a right to be considered if admission are made from the list. Therefore, if the list is cancelled for valid reasons, no candidate can raise a complaint that his rights are infringed. In this case, there cannot be any such complaint since list itself was not a finalised list, for the reason that the candidates were yet to be interviewed and hence, petitioners had no right to be admitted on the basis of Ext.P2 list. Even otherwise, since the cancellation of the list was for valid reasons, none of the petitioners can W.P (C) No.24228 of 2010 14 complain that any of their fundamental rights have been violated by the impugned decision of the respondents. Therefore, I do not find any merit in the contention of the students. 18. In that view of the matter, second contention raised by the petitioners is liable to be rejected and I do so. Writ petition fails and it is dismissed. ANTONY DOMINIC JUDGE ma