IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 WA.No. 2750 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.20646/2009 Dated 04/11/2009 .................... APPELLANT/WRIT PETITIONER ------------------------------------------------- RUBY M.A., D/O.E.K.KUNHAMMED KUTTY, AGED 19 YEARS, RESIDING AT 3/438, "ROSE VILLA", POTTANGADI RAGHAVAN ROAD, NADAKKAVU, CALICUT - 673 011. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): RESPONDENTS ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BULDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 695 011. 3. SILMIYA K.P., A 20, TOWN POLICE QUARTERS, K.P.K.ROAD, KOZHIKODE PRESENTLY HAVING RESIDENCE AT AL FALAQ, PANAMKULAM PARAMBA, OLAVANNA P.O., KOZHIKODE. 4. ANJALI A.R., AMBADY, MAITHRI NAGAR, ARATTUTHARA P.O. MANANTHAVADY, WAYANAD, PIN - 670 645. R1 & R2 BY SR.GOVT.PLEADER SRI.BENJAMIN PAUL. R3 & R4 BY ADV.SRI.P.K.SURESH KUMAR. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.Raman, Ag.C.J. & Thottathil B.Radhakrishnan = = = = = = = = = = = = = = = = = = = = = = = = W.A.No.2750 of 2009-E = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of February, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The appellant competed in the Medical Entrance Examination, 2009 conducted by the second respondent. She claimed allotment in the sports quota. She was found eligible and was allotted seat for MBBS in the TD Medical College, Alappuzha. 2.Appellant filed the writ petition contending that the placement given to her is unsustainable in view of the clear provisions contained in clause 5.2.19 of Ext.P2 prospectus which regulates sports quota. Pithily, her case is that the merit list of candidates entitled to sports quota has to be made by grouping a consolidated merit list WA2750/09 -: 2 :- of candidates who had secured eligibility from individual events and the team events and the allotment has to be made on the basis of merit from that consolidated list. 3.During the course of the writ petition, an interim order was issued requiring the Commissioner for Entrance Examinations to do certain things as directed in that interim order. Pursuant thereto, the Commissioner placed the consequential decision also before the learned single Judge. Thereafter, after hearing the parties, the writ petition was dismissed. Hence, this writ appeal. 4.Before us, the learned counsel for the appellant argued that clause 5.2.19 of the Prospectus admits only one construction and that such interpretation could only be that the merit list of sports quota candidates has to be made by taking the categories of individual events and team events and allotment is to be made from that WA2750/09 -: 3 :- list on the basis of comparative merit. He says that only this would be fair and that the approach adopted by the official respondents is totally irrational and untenable. He would point out that the official respondents were not entitled to keep two separate lists, one for individual events and another for team events and then make separate allotment from those two lists by following a rota rule among the candidates in those two separate lists. Based on the materials on record, he argued that the comparative marks obtained by the appellant Ruby and the 4th respondent Anjali, as also the 3rd respondent Silmiya would show that the appellant had scored a total which would be around 98 marks over and above the 4th respondent Anjali and more than 150 marks over the third respondent Silmiya. 5.The learned Government Pleader pointed out that the official respondents were only following the principles that had been followed in the previous years also and it will be too late in the day; WA2750/09 -: 4 :- eight months after the commencement of classes; for this Court to consider reversing the verdict handed down by the learned single Judge. 6.Learned counsel for contesting respondents 3 and 4 argued that allotment has been made clearly in terms of clause 5.2.19 and advertence to that clause would show that while the Sports Council authorities were to collect the roll numbers and furnish them in the mark list and provide two lists of candidates falling under individual events and team events, the ultimate consideration has to be on the basis of those lists and there is no question of consolidation being made, including the individual events and team events, going by clause 5.2.19. He argued that resultantly, in terms of the last sentence of clause 5.2.19, a common principle is to be followed for allotment of seats in Engineering/ Medical/Agriculture and allied courses and that this having been done, no injustice can be pointed out by the appellant. WA2750/09 -: 5 :- 7.As of now, we may notice that the litigation in hand is not in relation to admission, as such. The appellant was allotted to T.D.Medical College, Alappuzha. The question is whether she was entitled to preferential claim for Medical College, Thiruvananthapuram. Her plea is that she, being a player in Shuttle Badminton, would have better facilities for practice in Thiruvananthapuram rather than in Alappuzha and that she is entitled to such support even from the Governmental machinery. 8.We may notice that comparing the marks, there can be no dispute that the appellant stands above respondents 3 and 4 going by the totals achieved by consolidating the marks to be allotted on the basis of proficiency in the field of sports along with the marked obtained in the Entrance Examination. 9.But, at the same time, it also needs to be noted WA2750/09 -: 6 :- that clause 5.2.19 provides for preparation of merit list for each category, thereby meaning two categories, namely, individual events and team events. This means that there has to be a merit list for the category of individual events and another merit list for team events. The merit list has to be prepared on the basis of inter-se merit, i.e., merit in the common admission test. Clause 5.2.19 further provides that a category wise list of candidates included in 'individual' and 'team' events will be prepared based on the inter-se merit and published separately. It also indicates that separate category-wise lists have to be published categorizing the candidates who fall in the individual events and the candidates who fall in team events separately. Clause 5.2.19 does not provide for consolidation of those two lists, even if it is assumed that there will be two lists before the Entrance Examination Commissioner. Obviously, therefore, the State has to take recourse to some methodology of allotment. A fair room is provided in the last WA2750/09 -: 7 :- clause, which we had already taken note of; that a common principle has to be followed for allotment of seats in Engineering/ Medical/Agriculture and allied courses. We are inclined to take the view that the said clause provides room for the Government officials to decide as to how the allotment is to be made. All that has to be, is that it should be fair and reasonable and not in derogation of any term of the Prospectus or binding laws. It is not controverted by the appellant that even during the previous years, allotment was being made by following a rota principle among the candidates coming in the two lists; that is, the list of candidates from the individual events and the list of candidates from the team events. Therefore, on a clear interpretation of clause 5.2.19, there may not be any room for us to disagree with the findings of the learned single Judge, particularly those rendered by saying that there is no reason for the writ court to find a situation of injustice warranting interference WA2750/09 -: 8 :- under Article 226. 10.With the aforesaid, we also record the submission of the learned Government Pleader that the contentions of the appellant have been given due weightage by the Government and appropriate amendments are being considered to be made to the prospectus for the coming years. 11.Whatever be the merits/demerits of the appellant's case on the basis of the prospectus, she, when compared to respondents 3 and 4, had been able to secure only third choice among the colleges that she had offered though at the competitive examination for entrance, she stood head and shoulder above them. Taking that as a very significant and special circumstance, in exercise of writ jurisdiction, we hereby direct the State Government to consider and allot a seat to the petitioner as if it is vacant in the second year MBBS course next year at Thiruvananthapuram in the same batch. It is also WA2750/09 -: 9 :- clarified that this direction will override any other preferences because following the interim order issued by the learned single Judge and noticed by the Controller of Entrance Examinations, no student had ever raised any objection to the procedure adopted by this Court. Subject to the aforesaid directions, the judgment of the learned single Judge would stand confirmed and the writ appeal would stand dismissed accordingly. P.R.Raman, Ag.Chief Justice . Thottathil B.Radhakrishnan, Judge. Sha/