IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 21998 of 2008(R) -------------------------- PETITIONER: ---------------- TINU CHERIAN D/O.LEELA JOSEPH,3/298A, THENAMKODATHU HOUSE, ERAMATHU ROAD, CHEMPU MUKKU, KAKKANADU, ERNAKULAM DISTRICT. BY ADV. SRI.S.KRISHNAMOORTHY RESPONDENTS: ------------------- 1. STATE OF KERALA REP.BY THE PRINCIAPL SECRETARY, DEPARTMENT OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 2. THE KERALA CHRISTIAN PROFESSIONAL COLLEGE MANAGEMENTS FEDERATION (KCPCMF) REP. BY ITS SECRETARY, RAJAGIRI P.O., KALAMASSERRY, KOCHI - 683 104. 3. THE DIRECTOR, MALANKARA ORTHODOX SYRIAN CHURCH MEDICAL COLLEGE, KOLENCHERRY. 4. MEDICAL COUNCIL OF INDIA REP. BY ITS CHAIRMAN, NEW DELHI, BY SRI. ALEXANDER THOMAS -SC MCI SRI. TONY GEORGE KANNANTHANAM GOVERNMENT PLEADER SRI. I.V. PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.21998 OF 2008 ---------------------------------------- Dated this the 22nd day of July, 2008 JUDGMENT The petitioner is an aspirant for admission to the MBBS Course in Medical Colleges in Kerala this year. She seeks admission to the 3rd respondent’s College, which has been denied to her on the ground that she has not secured 50% minimum marks in the Common Entrance Test (CET). The contention of the petitioner is that minimum 50% marks in the Common Entrance Test was not one of the eligibility criteria prescribed by the 3rd respondent as per Ext.P1 prospectus issued by them inviting applications for admission to MBBS Course in their College. According to the petitioner, the eligibility criteria fixed in Ext.P1 was only 50% marks in the Higher Secondary Examination for Biology separately and Physics, Chemistry and Biology together. The only further eligibility criterion was that the candidate must be in the medical rank list prepared by the Commissioner of Entrance Examination, Kerala on the basis of CET-2008. The petitioner would contend that the petitioner is W.P.(c)No.21998/08 2 included in the medical rank list prepared by the Commissioner of Entrance Examination, although she secured only 45.07% marks. According to her, she has secured 86.66% marks in the Higher Secondary Examination. She would submit that as per Ext.P1 prospectus, the merit list has to be prepared by taking 50% marks of the qualifying examination and 50% marks in the CET. She would submit that considering thus the petitioner’s rank would come to 118 in the community quota, but instead, the 3rd respondent has excluded the petitioner by insisting that in addition to the other eligibility criteria, the petitioner should also secure minimum 50% marks in the CET as per MCI norms. On the basis of the decision of this Court in Kerala Self Financing Engineering College Managements Association V. The Admission Supervisory Committee for Professional Colleges and another [2007 (3) KLT 136] the petitioner would contend that as far as the Self Financing Colleges are concerned, it is not mandatory that they should adopt Common Entrance Test conducted by the Commissioner of Entrance Examination at all, and that they are free to devise their own admission procedure even by W.P.(c)No.21998/08 3 conducting their own admission test. The petitioner’s submission is that by Ext.P1, the 3rd respondent has devised an admission procedure whereby the rank list has to be prepared on the basis of marks in the qualifying examination and CET in the ratio of 50:50. The only other conditions are that the candidate must have the minimum 50% marks in the qualifying examination and must be in the Common Entrance Test rank list prepared by the Commissioner of Entrance Examination. According to her, in Ext.P1 there is no mention that minimum 50% mark in CET is insisted upon as a qualifying criterion for admission. The petitioner, therefore, seeks the following reliefs: “ i) to issue a writ of certiorari or other appropriate writ, order or direction quashing clause (II) in Ext.P7 Regulation issued by the 4th respondent to the extent and declaring that the same will not be applicable in respect of State of Kerala is concerned; ii) to issue a writ of mandamus or other appropriate writ order or direction directing the 2nd respondent to prepare a fresh list of candidates basing on the percentage of marks obtained both for qualifying Examination as well as C.E.T., without insisting for a minimum of 50% for the CET Examination and to prepare the same giving first priority to the open merit and select the candidates from the community quota from the remaining candidates in the open merit quota; W.P.(c)No.21998/08 4 iii) to issue a writ of mandamus or other appropriate writ, order or direction directing the 2nd and 3rd respondents to select and accommodate the petitioner herein for the M.B.B.S. Course 2008 in the community quota considering her objection without insisting for 50% minimum marks for the Common Entrance Test and to give an allotment as per Ext.P1 prospectus”. 2. The learned counsel appearing on behalf of the 3rd respondent stoutly opposes the prayers of the petitioner. According to him, the contention of the petitioner that there is no eligibility criterion of minimum 50% marks in the CET is not correct at all. He would submit that in Ext.P1 there is a specific condition that the norms of eligibility prescribed by the MCI and respective Universities will also be applicable for admission and therefore, the minimum 50% marks in the CET is an eligible criterion for admission to their College. 3. I have considered the rival contentions in detail. The relevant Clauses in Ext.P1 are 2.2 and 4.1, which read thus: “2.2 Academic: i) Pass in Higher Secondary Examination of the Board of Higher Secondary Education of Kerala or an examination recognized equivalent thereto with at least Fifty percent marks in Biology separately and Fifty percent marks in Physics, Chemistry and Biology/equivalent subjects W.P.(c)No.21998/08 5 put together or equivalent grade. SC/ST candidates shall be eligible for statutory relaxation in minimum marks. The norms of eligibility prescribed by the MCI and the respective Universities will also be applicable. ii) Rounding off of the percentage of marks to the nearest whole number is not permitted. iii) Candidates who have passed their qualifying examination from authorities other than the State of Kerala shall produce the certificate of recognition and equivalency of the qualifying examination from the University in Kerala with which the concerned college to which admission is sought for is affiliated. iv) The candidate must be in the Medical rank list prepared by the Commissioner of Entrance Examinations, Kerala, on the basis of the CET-2008. xxx xxx xxx 4.1 Preparation of common Merit list and Allotment of Seats: Subject to any orders that may be passed by the Courts, admission will be only on the basis of merit by adding marks obtained in the entrance examination conducted by state Commissioner for Entrance Examination and marks obtained for Physics, Chemistry and Biology/equivalent subjects in the qualifying examination. The marks of the CET and Qualifying examination will be apportioned in the ratio of 50:50”. 4. The petitioner’s contention is that the last sentence in 2.2 (i) applies only to the qualifying examination marks as stated in the first two sentences. This does not appear to be correct. The first two sentences relate to the conditions of requirement of 50% marks in the qualifying examination. W.P.(c)No.21998/08 6 But the last sentence, by the very nature of the words used therein, is in addition to the first qualification. The word 'also' contained therein sufficiently makes it clear. Therefore, I am of opinion that the norms of eligibility prescribed by the MCI to the extent the same directs that the candidates should have secured minimum 50% marks in the CET applies to the Ext.P1 prospectus also. In so far as the petitioner has no case that any candidate, who has not secured 50% marks in the CET, has been admitted to the 3rd respondent’s College, the petitioner cannot now contend that the norm is not applicable to the petitioner. From a reading of Clauses 2.2 and 4.1 of Ext.P1, I am satisfied that in addition to the 50% marks in qualifying examination, minimum 50% marks in the Common Entrance Test as required by MCI norms is also an eligibility condition as per Ext.P1. 4. The learned counsel for the petitioner would submit that there is discrimination in so far as NRI students are not required to either pass the CET at all or to undergo any other entrance test. I am of opinion that as held by the Supreme Court decision, the NRI candidates are to be treated as a W.P.(c)No.21998/08 7 separate class and the normal rules applicable to other candidates have been totally excluded for the purpose of admission of NRI candidates. The Supreme Court has given elaborate reasons as to why the NRI candidates should be treated separately for this purpose. In view of the Supreme Court decision on the subject, I do not think that the petitioner can make out a case of discrimination on the ground that the NRI students do not have to satisfy the eligibility criterion. 5. The petitioner submits that the intention of the 3rd respondent is to fill up the vacancies left, after giving admission to all those persons who have secured 50% marks in the CET, to be filled up by candidates of their choice. I have no doubt that when such dilution are contemplated that would also be on the basis of specific criteria and if the petitioner comes within that criterion, she would also be naturally considered. But this shall not be taken as a licence to make admissions otherwise than as per Ext.P1. As far as the decision referred to by the petitioner is concerned, I am of opinion that the decision has no application to the case at hand and it would apply only if the 3rd W.P.(c)No.21998/08 8 respondent had conducted their own Entrance Test without reference to the Common Entrance Test by the Commissioner of Entrance Examinations at all. But in this case by Ext.P1, they have decided to go by the Common Entrance Test to the extent stipulated in Ext.P1, which includes minimum 50% marks in the CET. That being so, the reliance on the decision referred to above is misplaced. For all the above reasons, I do not find any merit in this writ petition and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.21998/08 9