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. 32413 OF 2010(B) -------------------------- PETITIONER: ------------------- SHAMEEM.K.T, S/O.ABDUL LATHEEF.K.T, HAJI NIVAS, KARUVANTHIRUTHY, FEROKE, KOZHIKODE-673 643. BY ADVS. SRI.C.P.MOHAMMED NIAS SMT.M.LISHA RESPONDENTS: ---------------------- 1. LAKSHMIBAI NATIONAL COLLEGE OF PHYSICAL EDUCATION, KARIAVATTOM, THIRUVANANTHAPURAM-695 581, REPRESENTED BY ITS PRINCIPAL. 2. UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695 034, REPRESENTED BY ITS REGISTRAR. 3. TSERING YANGZOM, IST YEAR B.P.E.STUDENT, LAKSHMIBAI NATIONAL COLLEGE OF PHYSICAL EDUCATION, KARIAVATTOM, THIRUVANANTHAPURAM-695 581. R2 BY 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. 32413 OF 2010(B) ------------------------------------ APPENDIX ----------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE APPLICATION IN THE PRESCRIBED FORM SUBMITTED BY THE PEITIONER FOR ADMISSION TO THE BPE COURSE. EXT.P2. COPY OF THE RELEVANT PORTION OF THE PROSPECTUS FOR ADMISSION TO THE BPE COURSE IN THE FIRST RESPONDENT COLLEGE. EXT.P3. COPY OF THE LIST OF CANDIDATES FOUND TO BE QUALIFIED FOR ADMISSION TO THE BPE COURSE, PUBLISHED BY THE FIRST RESPONDENT ON 10.7.2010. EXT.P4. COPY OF THE NOTICE DATED 19.7.2010 PUBLISHED BY THE FIRST RESPONDENT COLLEGE. EXT.P5. COPY OF THE MEMO DATED 29.7.2010 ISSUED BY THE FIRST RESPONDENT COLLEGE TO THE PETITIONER EXT.P6. COPY OF THE RANK LIST OF CANDIDATES FOUND ELIGIBLE FOR ADMISSION TO THE BPE COURSE 2010-11 PUBLISHED BY THE FIRST RESPONDENT AFTER CONDUCTING THE RETEST ON 10TH AND 11TH AUGUST 2010. EXT.P7. COPY OF THE ORDER PASSED BY THIS HON'BLE COURT DATED 7.9.2010 IN WPC NO.24288/2010. EXT.P8. COPY OF THE MARK LIST OF CANDIDATES INCLUDED IN EXT.P6 RANK LIST. RESPONDENTS' EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 32413 OF 2010 ......................................................................... Dated this the 12th April , 2011 J U D G M E N T Whether Ext. P6 Rank List prepared by the first respondent and the admission given accordingly to the degree course of Bachelor of Physical Education ( in short 'BPE') is in conformity with the terms of Ext. P2 prospectus, forms the basic question to be decided. If not, whether it has caused any prejudice in having denied admission, is the consequential question. 2. The first respondent Institution is stated as established by the Government of India in the year 1985 and is functioning under the Sports Authority of India, which is fully owned and controlled by the Government of India . It is stated as one of the two institutes available in India and the only one of its kind in the State. Out of the total 50 seats for the BPE course, 30 seats are reserved for boys, while the remaining 20 seats are for girls. Applying the rules of reservation as contained in Ext. P2 prospectus, 50% has to be filled up by General Category and the remaining 50% is available for reservation among different W.P.(C) No. 32413 OF 2010 2 categories. 3. The petitioner who belongs to Muslim Community, which is an OBC, applied for selection by submitting Ext.P1 application. The test consists of three different components, as stipulated under clause 10.1.2. of Ext.P2 prospectus viz., (i) Physical fitness test (2) Academic/Written test and (3) Game/Sport Playing Ability Test. On completion of the tests as aforesaid, for admission to academic year 2010-2011, Ext.P3 rank list was published, which however was held as not in conformity with the norms prescribed by the 2nd respondent/University and hence was cancelled as per Ext. P4 notice issued by the first respondent. Later a re-test was conducted, as borne by Ext.P5 notice dated 29.07.2010 and on culmination of the proceedings, Ext. P6 rank list was published, wherein the petitioner was enlisted at Sl.No.1 of the Muslim 'waiting list' under OBC reservation. The case of the petitioner is that Ext.P6 rank list is not in conformity with Ext.P2 norms of the prospectus and that the placement given to the third respondent at Sl.No.25 of the said list in the 'General category' is quite wrong, she having secured only 52% while the W.P.(C) No. 32413 OF 2010 3 candidate placed at Sl.No.3 of the Muslim reservation (by name Nasida Navas) has secured 58% marks, who in turn should have been placed in the General list and as a natural consequence, the petitioner would have been included as one among the four Muslim candidates eligible for reservation, instead of placing the petitioner as a 'waiting list' candidate under the said reservation category. 4. Another contention of the petitioner is that, marks have been awarded by the first respondent to some of the reservation candidates, who did not secure the minimum 50% marks to qualify themselves to be shown in the rank list. As per the relevant Clause in Ext.P2 prospectus, a maximum of '10 marks'(bonus points) could be given as 'bonus' to such candidates, so as to make them qualified and to provide admission; whereas the first respondent simply added 10 marks to the marks secured by such candidates, who failed to secure the minimum 50%, whereby they have been shown as obtained more marks than the petitioner and other similarly situated candidates, which has also tilted the balance to the detriment of W.P.(C) No. 32413 OF 2010 4 the petitioner and hence under challenge. 5. The petitioner further contends that some of the reservation candidates, who have secured more marks and are eligible to be placed in the General Category, have been wrongly placed in the reservation quota, which is contrary to the law declared by the Apex Court and hence is liable to be rectified. Several other discrepancies are also pointed out, referring to the facts and figures available on record. 6. The first respondent has filed a counter affidavit, followed by three other different affidavits at different points of time in the course of the proceedings. It is contended by the first respondent that the rank list has been prepared in conformity with Ext. P2 norms; that the same is in tune with the reservation norms; that the third respondent has been given placement at Sl.No.25 of Ext.P6 rank list (for her being a 'girl candidate' eligible to be accommodated against the total 20 seats earmarked for girls); that the existing two vacancies can be filled up only on the basis of merit by accommodating the W.P.(C) No. 32413 OF 2010 5 better placed candidates than the petitioner ( 'five' in total). It is further contended that the said 'five' persons have not been chosen to be impleaded in the party array and hence bad for non-joinder of parties. It is also stated that the additional 'ten marks' given to some of the reserved candidates are 'bonus marks' as provided under the relevant clause in of Ext. P2 prospectus, to make them qualified, who accordingly have secured more marks than the petitioner and hence happened to be placed above the petitioner. Some other aspects are also pointed out in respect of the pleadings raised by the petitioner. 7. No counter affidavit has been filed by the second respondent University. 8. During the course of the proceedings, the petitioner pressed for an interim order in view of availability of two vacancies in the general quota. Considering the rival contentions, it was observed by this Court that the contention of the first respondent that the third respondent was accommodated at Sl.No.25 in the 'girls' quota' is unsatisfactory for the reason that the candidate by name Nasida Navas, shown at Sl.No.3 of W.P.(C) No. 32413 OF 2010 6 the Muslim reservation list, is also a 'girl' who had secured more marks (58%) than the third respondent (53%) and hence, if at all any 'girl' was to be accommodated, it could have been only the said Muslim girl and not the third respondent. It was accordingly, that Ext.P9 interim order was passed on 15.11.2010, whereby the first respondent was directed to consider the claim of the petitioner to one of the two available vacancies and to pass appropriate orders within ten days. Pursuant to Ext. P9 interim order, the matter was considered by the first respondent, who passed Ext.P10 order dated 27.11.2010, virtually reiterating the stand already taken in the different affidavits filed before this Court, rejecting the claim. In the said circumstance, the petitioner got the writ petition amended by filing I.A.No. 17583 of 2010, challenging Ext.P10 order as well. 9. The first point to be considered is whether the action pursued by the first respondent in placing a candidate, who has proven her mettle both in the General category as well as in the Reservation quota, in the 'Reservation category' is correct or not. To cite an example, the candidate by name Nasida Navas at W.P.(C) No. 32413 OF 2010 7 Sl.No.3 of the Muslim reservation list has secured 58% marks as revealed from Ext.P8, whereas the third respondent, who has been placed at Sl.No.25 of the General List of Ext. P6 has secured only 53%. Since both the said candidates are girls, if at all any girl candidate is to be accommodated in Ext.P6 (against the 20% quota for 'girls'), it could only be by accommodating the former and not the latter-the third respondent, for having secured 5% more marks than the third respondent. 10. The law is well settled by virtue of the decision rendered by the Apex Court in Ritesh R Sah vs. Dr. Y.L. Yamul and others [(1996 )3 SCC 253] that when a candidate secures admission both in the 'General category' and also in the 'Reservation category', the candidate has necessarily to be placed in the General category, thus paving the way to accommodate a reservation candidate to give effect to the scheme of reservation, obviously for the reason that the former candidate does not require the benefit of reservation. 11. Applying the said law to the given set of facts, the candidate by name Nasida Navas at Sl.No.3 of the Muslim W.P.(C) No. 32413 OF 2010 8 reservation of Ext.P6 list, by virtue of her higher percentage of marks, ought to have been included in the 'first 25' of Ext. P6 list in 'General category', upon which the petitioner, who is now placed at waiting list No.1 of Muslim category would have been included as one among the four reservation seats of Muslim candidates, who was to be accommodated accordingly. The steps taken by the first respondent to the contrary is alien to the settled position of law and hence is liable to be interfered. 12. It is relevant to note that the first respondent has explained the preparation of rank list in paragraph 2 of Ext. P10 order impugned in the writ petition, in the following terms: “The rank list is prepared in the order of merit for the first 25 general seats irrespective of boy/girl/caste/religion. It is followed by filling up the remaining 25 seats from the reserved categories.” From the above, it is rather admitted that the first 25 candidates under the 'General seats' have to be shown in the order of their merit, irrespective of boy/girl/caste/religion status. If this be the position, the first respondent was certainly not right in having W.P.(C) No. 32413 OF 2010 9 placed the third respondent at Sl.No.25 of Ext. P6 rank list as a 'girl' candidate, which in turn runs contrary to the first respondent's own admission and hence a paradox. 13. Going by the admitted version of the first respondent, if the 'first 25' General seats (50% of the total number of 50) are to be shown in the order of merit, it could only be by including the candidate by name Nasida Navas placed at Sl.No.3 of the Muslim reservation of Ext. P6 list and not by the third respondent. The list requires interference on this ground as well. 14. With regard to the contention of the petitioner that the allocation of 'bonus marks' by the first respondent to the 'under qualified reservation candidates', to make them qualified, granting them more marks than required and in turn placing them over and above the actually better qualified candidates, the relevant clause in Ext. P2 prospectus reads as follows: “ A maximum of ten bonus points will be added to the aggregate points secured by Scheduled Caste/Scheduled Tribe candidates , if they fall short of the qualifying standard.” W.P.(C) No. 32413 OF 2010 10 Since the qualifying standard admittedly being 50%, an SC/ST candidate who obtains 49 marks could be given 'one' mark to make him qualified by obtaining 50% and a candidate who obtains 40 marks could be given maximum of 10 marks, so as to make it 50%. The rule/norm does not contemplate giving of 10 bonus marks to all SC/ST candidates who secure marks below 50%, so as to have a march over the other better qualified candidates who have obtained 50% marks and above. The purpose of the rule is obviously to give effect to the scheme of reservation and not to give any undue advantage or unlawful gain to SC/ST category, to be placed over and above the other better qualified persons and in turn even facilitating a placement in the 'General list' on obtaining more marks than the other candidates eligible to be placed in the 'General list'. The explanation offered from the part of the first respondent is totally unsatisfactory and illogical in all respects. Ext.P6 list prepared on the basis of said wrong and misconceived idea as to the provision for allotting 'bonus marks' is liable to be intercepted on this score as well. W.P.(C) No. 32413 OF 2010 11 15. In view of the above positive finding on different heads, the matter no longer requires to be dealt with on any other ground, to hold that preparation of Ext.P6 list is not in conformity with Ext.P2 norms and the settled position of law. Though there is a case for the petitioner, raising the plea of malafides, this Court rejects the same, as such plea of malafides is not substantiated, nor has the concerned party been brought in the party array in the personal capacity. Anyhow, it is declared that preparation of Ext.P6 list by the first respondent is not in conformity with the norms stipulated in Ext.P2 prospectus. 16 . The next question is whether Ext.P6 list is to be set aside, directing the first respondent to have it recast so as to extend the relief to the petitioner, if the petitioner is eligible for the same. By virtue of admitted distribution of marks as revealed from Ext. P8 and the materials on record, the third respondent does not belong to any reserved community but for being a 'girl'( eligible to stake the claim only in respect of the 20 seats earmarked for the girls); whereas the candidate by name Nasida Navas at Sl.No.3 of the Muslim reservation, shown W.P.(C) No. 32413 OF 2010 12 in Ext. P6 rank list is also a 'girl' and has scored 58% marks and hence is better qualified to be placed in the 'General list' in preference to the third respondent. In view of the finding already rendered by this Court, as to the eligibility of the said better qualified candidate to be placed in the General category, in preference to the third respondent, the petitioner would have naturally been pushed up from the 'waiting list ' position, to one among the four candidates belonging to the Muslim reservation and would have obtained admission, under such circumstance. Even accepting the contention of the first respondent that sufficient number of girls have to be accommodated (against the total 20 seats earmarked for girls together under General and Reservation category), on implementing the same, the last boy candidate in Ext.P6 list may be necessitated to be pushed down; by virtue of which, the candidate by name Nasida Navas ( being a girl), if placed in the 'General list' (after removing from the Muslim reservation list by virtue of her higher marks) would not have been affected in any manner. The adverse consequence to be resulted to a boy candidate who has already been placed in W.P.(C) No. 32413 OF 2010 13 Ext. P6 contrary to the above stipulations, as pointed out in paragraph 9 of Ext.P10 order is not of any consequence or significance, as far as the vested right of the petitioner is concerned. As such, this Court declares that the petitioner is eligible to get admission to the BPE course for the academic year 2010-11 and the steps taken by the first respondent to the contrary including by passing Ext.P10 are liable to be intercepted. 17. Coming to the consequential part, it is an admitted fact that there are 'two' vacancies in the 'General quota' as on date and it is stated in Ext. P10 order (paragraph 13 as well as in paragraph 8 of the counter affidavit dated 12.02.2011) that the first respondent has already written to the second respondent University for permission to fill up the said vacancies; that reply is awaited and that steps will be taken to fill up the same by giving admission to the persons who are allegedly placed above the petitioner as explained in paragraph 11 of Ext. P10 and elsewhere in the counter affidavit. As such, there is no impediment to give admission now, but to 'whom', is the W.P.(C) No. 32413 OF 2010 14 question. The plea of non-impleadment of the 'five' candidates allegedly placed above the petitioner in the order of reservation cannot place a bar against the better rights of the petitioner, in view of declaration made by this Court with reference to the wrong entry given by the first respondent to the third respondent by placing her at Sl. No.25 of Ext.P6 rank list, instead of placing the better qualified/eligible candidate by name Nasida Navas (Sl.No.3 of Muslim reservation). As such, the petitioner is very much entitled to be pushed up to be included as one among the four Muslim candidates who should have been admitted at the first round itself and hence stands on a higher pedestal. That apart, the above mentioned '5' candidates, pointed out by the first respondent, have no case that there are two vacancies and they should be accommodated against one of such vacancies, who have filed no case before this Court in this regard so far, but for sleeping over the cause, if any. 18. In the above circumstances, the petitioner is liable to be accommodated against one of the existing two vacancies, for which, no permission of the second respondent/University is W.P.(C) No. 32413 OF 2010 15 necessary for the fact that the University is a party to the present proceedings; that Ext.P9 interim order was passed by this Court also after hearing the second respondent University and further that the University has not chosen to file any counter affidavit in the writ petition. This Court finds that, though the challenge against Ext.P6 rank list is upheld, it is not necessary to have it set aside, tilting the balance in any manner and that the claim of the petitioner could be satisfied by directing the respondents to admit the petitioner to one of the two existing vacancies for the course of BPE for the year 2010- 11. It is ordered accordingly and this shall be given effect to forthwith, at any rate within one week from the date of production of a copy of the judgment . Ext. P10 will stand set aside to this extent. The writ petition is allowed . No cost. P.R. RAMACHANDRA MENON, JUDGE. lk