Dr.Neha Mariam George vs State Of Kerala

Gopinath P, J

The petitioner has approached this Court challenging the admission granted to the 3rd respondent to the MS (Ophthalmology) course at the 4th respondent College. Inter alia she seeks a writ of certiorari to quash the admission granted to the 3rd respondent and a declaration that the conversion of that seat from NRI (Minority) to NRI (Open) is illegal and unauthorized.

The followings facts are not in dispute. The petitioner is a candidate belonging to a Christian minority community who qualified in the NEET examination for admission to the Post Graduate Medical Courses in the academic year 2021-22. During the first and the second rounds of counselling, the petitioner had not opted for the MS (Ophthalmology) course in the 4th respondent college. By Ext.P11 letter of the Commissioner for Entrance Examinations, it was pointed to the 4th respondent that the NRI seats remaining unfilled may be converted into State merit seats at the fees specified for State merit seats and that allotment can be made to those seats during the mop-up allotment. In response to Ext.P11, the 4th respondent addressed Ext.P2 letter to the Commissioner for Entrance Examinations stating that if any of the NRI (Minority) seats in the College remain unfilled on account of non-availability of candidates, the same may be converted into NRI seats and not to State merit seats. In view of Ext.P2 order of the Supreme Court dated 31.3.2022 in W.P.(C)No.174/2022, Ext.P3 revised schedule and guidelines were published by the Commissioner for Entrance Examinations regarding mop-up counselling for PG Medical Courses for academic year 2021-2022. In terms of Ext.P3, the State mop-up counselling for PG Medical Courses for academic year 2021-2022 was revised as under:-

“18.4.2022 to 19.4.2022, 4.00 PM- Provision for surrender of seats for participation in the State Mop up Round (It may be noted that these candidates will be eligible to participate in the State Mop up Round only).

20.4.2022 to 21.4.2022, 4.00 PM- Provision for fresh option registration for State Mop up Round.”

It was made clear that the following candidates are eligible for registration of fresh options in State Mop up Round.

“1. Those candidates who have not got any allotment or are not holding a Kerala State PG seats as on 19.4.2022 5.00 P.M.

Those candidates who have surrendered their allotted seat/rejoined Round 2 seat complying with the Notification from this office dated 8.4.2022, before 19.4.2022, 4.00 PM.

Those candidates who are not holding a seat of All India Round 1, Round 2 or Special Round and as per the guidelines of MCC.”

By Ext.P5, the Commissioner for Entrance Examinations published mop-up allotment list in which it was seen that the MS (Ophthalmology) seat available for NRI (Minority) in the 4th respondent College was converted to NRI (Open) [See Sl. No.130 of Ext.P5]. Ext.P5 was preceded by a draft list on 27.4.2022. On noticing the draft list, the petitioner sent Ext.P6 communication to the 2nd respondent objecting to her exclusion on the ground that the seat in question had been converted to NRI (Open) in the place of NRI (Minority). This was followed by Ext.P7 email on 29.4.2022. The petitioner also addressed Ext.P8 letter to the Chief Minister's Public Grievance Redressal Cell and has thereafter, approached this Court by filing the above writ petition.

The learned Government Pleader appearing for respondents 1 and 2 has filed a statement contending that though the seat in question was reserved for NRI (Minority) vide G.O.(Rt) No.197/2022/H&FWD dated 22.1.2022 approving the seat matrix for admissions to PG Medical Courses for academic year 2021-2022, the Commissioner for Entrance Examinations had converted the seat into NRI (Open) quota for mop-up allotment taking into consideration Ext.P12 request from the 4th respondent. It is submitted that the conversion was deemed to necessary on account of the fact that it was felt that there was no candidate available for the NRI (Minority) seat as neither the petitioner nor any other candidate had opted for the said seat in the first and second rounds of allotment. It is submitted that the decision to convert the seat was a bonafide decision of the Commissioner for Entrance Examinations to ensure that a seat in MS (Ophthalmology) would not remain unfilled. It is submitted that the 3rd respondent was granted admission to that seat following the conversion. It is submitted since no candidate had opted for NRI (Minority) seat in MS (Ophthalmology) in the 4th respondent College in the first and second rounds of allotment, the conversion of the seat into NRI (Open) and the admission granted to the 3rd respondent cannot be faulted.

The learned counsel appearing for the 3rd respondent vehemently contends that the 3rd respondent had obtained a rank higher than the petitioner in the NEET examinations and was entitled to be admitted against the seat available for MS (Ophthalmology), in the 4th respondent's institution. It is submitted that the petitioner who had failed to opt for the seat could not at this point of time claim that she is entitled to be admitted to the said seat. It is submitted that despite the approval of the seat matrix by the Government through the Government Order dated 22.1.2022, it was open to the Commissioner for Entrance Examinations to allow conversion of the seat if no candidate was available against the specified category. It is submitted that it will be unfair and unjust to allow the prayer of the petitioner as the 3rd respondent is already been admitted and has commenced her course of study. It is submitted that the 3rd respondent will be put to great prejudice if this Court were to now direct the admission granted to the 3rd respondent be cancelled and the said seat be offered to the petitioner herein.

The learned counsel appearing for the 4th respondent has pointed out the circumstances under which Ext.P12 communication was issued by the College to the Commissioner for Entrance Examinations. It is submitted that the seat in question was kept apart in terms of the Government Order dated 22.1.2022 approving the seat matrix for the College for a student belonging to the NRI (Minority) category. It is submitted that the College had requested the Commissioner for Entrance Examinations to convert the said seat into NRI category only on account of the fact that the Commissioner for Entrance Examinations had, by Ext.P11, requested for converting the seat into State merit category and at the fee prescribed for State merit category. It is submitted that had a candidate been available under the NRI (Minority) category, the College would not have requested for conversion of the seat into NRI (Open) category.

I have considered the contentions raised. It is not disputed before me that the petitioner had a right to submit an option for MS (Ophthalmology) seat even at the time of mop-up allotment. Indeed, this cannot be disputed in the light of Ext.P3 notification, the terms of which have been extracted herein before. It is also not disputed that the petitioner belongs to NRI (Minority) category. When the mop-up allotment was to be held between 20.4.2022 and 21.4.2022, it was not open to the authorities to convert the seat from NRI (Minority) category to NRI (Open) category before 21.4.2022. That being the position, I have no hesitation to hold that the petitioner was wrongfully denied admission. Immediately after the draft list was published on 27.4.2022, the petitioner had raised the issue with the Commissioner for Entrance Examinations vide Ext.P6 communication. However, that did not evoke any response and a final allotment list was published vide Ext.P5 on 29.4.2022. The facts being as aforesaid, I direct that the petitioner be granted admission to the 4th respondent's College for MS (Ophthalmology) course after cancelling the admission granted to the 3rd respondent. To that extent, Ext.P5 allotment will stand set aside.

At  this  stage,  the  learned  counsel  appearing  for  the  3rd respondent submits that since the cancellation of admission granted to the 3rd respondent will have disastrous consequences as far as she is concerned this Court must also consider whether the 3rd respondent can be accommodated against any other vacant seats in any other college in the State of Kerala. Therefore, I directed the learned Government Pleader to obtain instructions from the 2nd respondent as to whether there is any seat against which the 3rd respondent can be accommodated by order of this Court.

The learned Government Pleader has obtained instructions from the Commissioner for Entrance Examinations. The Commissioner for Entrance Examinations has reported that the last date for completion of admission was 7.5.2022. It is submitted that amongst the options given by the 3rd respondent , two seats namely, MD (Pediatrics) at Government Medical College, Thiruvananthapuram (her 15th option) and MD (Pathology) at the Amala Institute of Medical Sciences, Thrissur (222nd option) are vacant. It is submitted that the vacancy in MD (Pediatrics) at Government Medical College, Thiruvananthapuram has occurred due to the surrender of seat by a candidate on the basis of the interim order of this Court dated 4.5.2022 in W.P.(C)No.14724/2022. It is submitted that the seat was surrendered on 7.5.2022 and remains vacant even on the last date for closing of admission. It is also pointed out that about 390 candidates, who have registered options for MD (Pediatrics) possess higher rank than the 3rd respondent. This is a case where the petitioner had to be given relief on account of an inadvertent error that occurred in the conversion of the seat in M.D (Ophthalmology) at the 4th respondent college from NRI (Minority) to NRI (Open). However, one cannot lose sight of the fact that the 3rd respondent had been granted admission to that seat. In order to ensure that justice is done, on equitable considerations I direct that the 3rd respondent be offered the vacant MD (Pediatrics) seat at the Government Medical College, Thiruvananthapuram. I note that the said seat will remain vacant, if the 3rd respondent is not accommodated against that seat, as no further admissions can be made. Hence no other candidate will be prejudiced. The 2nd respondent shall do the needful in the matter without any delay. Writ Petition shall stand disposed of as above.