IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36528 of 2008(W)
1. ARUNKRISHNAN.T.P, AGED,24 YEARS,
... Petitioner
2. DEEPESH.D.M, AGED, 24 YEARS,
3. REENA.V, AGED 24 YEARS,W/O.DR.JERALD
4. ANISHA.K.S, AGED, 24 YEARS,
5. SRUTHI.V.M, AGED 23 YEARS,
6. RUMSHEED.N, AGED 24 YEARS,S/O.AHMED KOYA
7. VIGEESH.N, AGED,25 YEARS,
8. SHAHUL HAMEED.T, AGED 25 YEARS,
9. ANJU UNNIKRISHNAN, AGED 25 YEARS,
Vs
1. STATE OF KERALA REPRESENTED BY PRINCIPAL
... Respondent
2. THE PRINCIPAL SECRETARY TO GOVERNMENT,
3. THE COMMISSIONER FOR ENTRANCE
4. THKE PRINCIPAL & CONTROLLING OFFICER,
For Petitioner :SRI.P.T.DINESH
For Respondent :SRI.SUNNY MATHEW
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :11/03/2009
O R D E R
(C.R.)
P.R. RAMACHANDRA MENON, J.
........................................................................
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
.........................................................................
Dated this the 11th March, 2009
J U D G M E N T
The challenge in both these Writ Petitions is with regard to
the fixation of the last date for completing the Internship as on
‘31.10.2008’ in Ext.P1 prospectus issued by the fourth
respondent with regard to the admission to the Post Graduate
Course of M.D.(Homoeo) offered in the Government
Homoeopathic Medical Colleges at Thiruvananthapuram and
Kozhikode. The petitioners in W.P.(C) No. 36528 of 2008 have
completed their Degree Course-B.H.M.S. in the Government
Homoeopathic Medical College, Kozhikode under the Calicut
University; whereas the petitioners in the other case have
completed the similar course in different institutions such as Dr.
Padiar Memorial Homoeopathic Medical College, Chottanikkara
and Athurasramam N.S.S. Homoeopathic Medical College,
Kottayam, both under the M.G. University. All the above
petitioners secured admission to the B.H.M.S. Course in the year
W.P. (C) No. 36528 OF 2008
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W.P.(C)No. 36529 of 2008
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‘2002’ based on the ‘common entrance test’ conducted by the
third respondent and the allotment to the different colleges
under different Universities was of course on the basis of the
merit and option exercised by such candidates.
2. As evident from Ext. P12 produced in W.P(C) 36528 of
2008, the date of starting of the B.H.M.S.- 2002 batch in the
Government Homoeopathic Medical College was on 17.09.2002,
the date of the first year examination of the above batch was on
16.06.2004 and the dates of promotion to the second year,
third year and to the fourth year B.H.M.S. were 04.10.2004,
04.10.2005 and 04.10.2006 respectively. It is also evident from
Ext.P12 that the final year examination was conducted on
04.10.2007 and the final year result was published on
27.11.2007. After coming out successful in the final year
examination, the petitioners obtained their provisional degree
W.P. (C) No. 36528 OF 2008
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certificate, on the basis of which they secured provisional
registration from the Travancore-Cochin Council of Homoeopathic
Medicines, which is a pre-requisite for commencement of
‘Internship’, and it was actually started on 06.12.2007 as shown
in Ext.P12. The Internship was completed on 05.12.2008 . On
the basis of such credentials, the petitioners are seeking
admission for the Post Graduate Course in M.D. (Homoeo) as
stated herein before.
3. With regard to the petitioners in W.P(C) 36529 of 2008,
similar statistics are available from Exts. P11 and P12 issued by
the concerned Medical Colleges . As borne by Ext.P11 issued by
Dr. Padiar Memorial Homoeopathic Medical College, the
Internship for 2002-08 batch was commenced only on
18.01.2008 and the normal duration of One Year Internship as
per the norms of the Central Council of Homoeopathy was to be
over only on 17.01.2009. As stated therein, the final year
W.P. (C) No. 36528 OF 2008
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W.P.(C)No. 36529 of 2008
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B.H.M.S. Class was completed only on 09.07.2007; the result of
the final year examination was published on 11.01.2008 and
the date of provisional registration given by the Medical Council
was on 15.01.2008, thus enabling the students to have
commenced their Internship on 18.01.2008 and in turn
completed the Internship on 17.01.2009. In the case of the
other Medical College ( viz., Athurasramam N.S.S.Medical
College, Kottayam), the position reflected from Ext.P12 is that
the 4th year B.H.M.S.Course was completed on 13.07.2007; the
date of publication of the final year result was on 08.01.2008;
the date of commencement of Internship was on 19.01.2008,
which was over on 18.01.2009
4. As per the relevant rules/norms fixed by the 4th
respondent/the Principal who issued Ext.P1 prospectus, the
students who are undergoing Internship are also eligible to
attend the written test/selection process. Accordingly, the
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
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petitioners had also submitted their applications for admission to
the Post Graduate Degree course in M.D. (Homoeo). But there
is a stipulation in Ext. P1 prospectus issued on 07.11.2008 that
only such students who completed their Internship on or before
31.10.2008 alone would be eligible for admission subject to the
condition that they should produce the Medical Council
Registration Certificate at the time of admission. By virtue of
above stipulation, the petitioners were never permitted to take
part in the written test, which made them to approach this court
by filing the above Writ Petitions contending that the said
stipulation fixing the last date for completing the internship as
31.10.2008 does not have any sanctity or nexus with any of the
objectives to be achieved in selection.
5. Referring to the various documents produced and the
tabulation given in the Writ Petitions with regard to the different
courses and prescription of the last date for completion of
W.P. (C) No. 36528 OF 2008
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W.P.(C)No. 36529 of 2008
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Internship, the learned counsel for the petitioners submits that
in almost all the cases, the date of completion of Internship is
specified to be a date much after the date of written test and
more closer to the date of the centralised admission procedure,
( the interview). Unlike this, in the instant case, the last date
for completion of Internship is stated as 31.10.2008, that too in
the prospectus published much after the said date, ie. on
07.11.2008. The learned counsel for the petitioners asserts that
the proceedings pursued by the 4th respondent are quite arbitrary
and unsustainable, intending to extend undue favours to the
students of the Kerala University, in so far as the present
Controller of Examinations happened to be the Principal of the
Thiruvananthapuram Homoeopathic Medical College. It is
contended that no discrimination is possible, since the students
of the Kerala University also belonged to the same batch as in
the case of the petitioners and who had secured admission to the
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
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Degree Course (B.H.M.S) by virtue of the Common Entrance Test
conducted in the year 2002, though they completed the
Internship on 27.10.2008.
6. The above Writ Petitions were admitted by this court on
15.12.2008 and an interim order was granted permitting the
petitioners to participate in the entrance examination for the
Post Graduate Course for the year 2008-09, which was scheduled
to be held on 10.01.2009, notwithstanding the stipulation that
they had to complete the Internship on or before 31.10.2008.
Based on the said interim order, the petitioners took part in the
examination and only the petitioners 1, 2, 4 and 6 in W.P.(C)
36528 of 2008 and the petitioners 6, 7, 10, 12 and 14 in the
other Writ Petition could come out successful. Such successful
candidates filed an Interlocutory Application before this court
for permitting them to participate in the further process of
selection, i.e., in the Centralised Admission Procedure to be held
W.P. (C) No. 36528 OF 2008
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in the due course. When the matter came up for consideration
before this court, considering the request of the respondents for
further time to file counter affidavit, a further period of two
weeks was granted as per the interim order dated 20.02.2009,
simultaneously staying the allotment and admission to the Post
Graduate Course of M.D. (Homoeo) for a period of two weeks,
which was subsequently extended by ten days as per the order
dated 03.03.2009.
7. The 4th respondent/controlling officer has filed a
counter affidavit sustaining the stand in fixing the cut off date
for completing the Internship as 31.10.2008. A reply affidavit
along with some additional document (Ext.P18) has been filed by
the petitioners rebutting the averments in the counter affidavit.
The case projected by the 4th respondent in the counter affidavit
is that fixation of the cut off date as 31.10.2008 was never to
extend any undue favours to the students of the Kerala
W.P. (C) No. 36528 OF 2008
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University, as alleged by the petitioners but that 31st of October
was being fixed as the cut off date, right from the year 2006 to
ensure that all the Universities in the State of Kerala conducted
the examinations on time and thus in the larger interest of the
student community as a whole so as to make them eligible to
pursue their further career. It is asserted in paragraph No.3 of
the counter affidavit that inclusion of the above criterion was to
make admissions to the Post Graduate courses in a more
prompt, systamatic and regularised manner in the subsequent
years and that similar cut off dates have been prescribed with
respect to other Post Graduate Courses as well. The counter
affidavit is obviously silent as to the practice and procedure
which was followed till 2006 and no special sanctity is offered
with regard to fixation of the cut off date as “31st of October”
from the year 2006.
8. It is stated in paragraph No.5 of the counter affidavit
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
10
that the entrance examinations for M.D. Course (Homoeo) in
2006 and 2007 were conducted on 11.11.2006 and 22.12.2007
respectively and that the students from all the Universities in
Kerala had written the entrance examination and no complaints
had arisen regarding the cut off date at that time. The learned
counsel for the petitioners contends that the fourth respondent
has taken a somersault in the very next sentence where it has
been conceded that in the year 2006, the students of the
Calicut University who became qualified on 28.12.2006 were
unable to write the P.G. Entrance Examination and that in the
year 2007 those who became qualified on 26.12.2007 also could
not write the same. This shows that there is absolutely no
consistency in the case put forth by the 4th respondent, submits
the learned counsel.
9. Learned Senior Government Pleader submits that there
is no contradiction or inconsistency with regard to the stand
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
11
taken by the respondents and what was intended was
participation of the eligible students who satisfied the
requirement of Internship prior to the cut off date . But then the
question becomes relevant as to the position/rule which was
actually in existence just prior to 2006, which is left unanswered
and obscure, making the concerned students ineligible to appear
for the P.G. Entrance Examination when the cut off date was
admittedly brought in stipulating the same as 31st October from
the year 2006 onwards. As stated already, the only explanation
offered by the 4th respondent for fixing the cut off date as 31st
October, (as stated again in paragraph Nos.8 and 10 of the
counter affidavit), is that it was to compel the Universities to
adhere to the time schedule in conducting the examinations and
to protect the larger interest of the students appearing for the
P.G. Entrance Examination in Homoeopathy.
10. Obviously, the dispute in these cases is not with
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
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regard to the power of the concerned respondents to prescribe
cut off date for completion of Internship, but is rather with
regard to the reckoning of the cut off date as ‘31.10.2008’;
when the 4th respondent who issued the prospectus on
07.11.2008 showing the cut off date as 31.10.2008 was well
aware that all the students of 2002-08 batch had secured
admission in the different Medical Colleges in Kerala on the basis
of the Common Entrance Test and on the basis of their
merit/option. There is absolutely no case for the concerned
respondent that there was any fault or lapse on the part of the
students in completing the course/examination/Internship.
Equally or more so is the position, when no specific case or
instance is pointed out as to any delay on the part of any of the
concerned College or University in conducting the examinations
or Internship on time. When the 4th respondent asserts that
prescription of the cut off date as 31.10.2008 was with the
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
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specific intention to persuade or compel the Universities to
complete the course and examinations, followed by internship on
time, absolutely no answer has been given to the question as to
whether there was any failure on the part of any of the
Universities in this regard. In any view of the matter, as stated
above, no fault or lapse on the part of the petitioners/students is
pointed out by the 4th respondent.
11. It is not known, how any blame can be put on the
shoulders of the petitioner, so as to keep them away from the
field of selection with regard to the admission for P.G. Course
(M.D.-Homoeo); simultaneously confining the zone of
consideration to a very small group of students who belong to
the Kerala University and who were fortunate to have their
Internship completed on 27.10.2008, i.e., just four days prior to
the cut off date fixed by the fourth respondent . In other words,
the students, who have completed their course in different
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
14
colleges under the different Universities in Kerala; despite the
fact that they were selected and allotted to such
Institutions/Universities on the basis of the Common Entrance
Test and selection procedure pursued by the
Government/Departmental authorities, ( who, hence are liable to
be treated on an equal platform), have quite unfortunately been
classified in an unreasonable manner, though may not be
wilful, which has resulted in very adverse consequences in so far
as the rights and interests of the affected persons are
concerned.
12. The additional respondents 6 to 10 in W.P.(C)
No.365289 of 2008 and 5 to 9 in the other Writ Petition who got
impleaded themselves contend that they (belonging to the
Kerala University) having completed the Internship on
27.10.2008, alone are eligible to be considered for selection to
the P.G. Course in view of the specific mandate in Ext.P1
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
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prospectus. The said additional respondents further contend
that the claim of the petitioners herein is not liable to be
entertained, particularly since the stipulation contained in Ext.P1
prospectus cannot be varied or modified in any manner. The
learned counsel for the petitioners submits that impleadment of
the above respondents was objected right at the beginning and
even otherwise, they cannot be heard to say that they have got
any vested right to have the zone of consideration confined to
themselves, excluding all others; especially when no candidate is
having any vested right to get admission on the basis of the
prospectus, as made clear by this court in the decision in Relly
Susan Mathew vs. The Controller of Entrance
Examinations and others [1997(2) ILR (Kerala) 489]
(paragraph 15).
13. It is relevant to note that some of the petitioners
anticipating the adverse circumstances, had filed Ext.P8 and P8
W.P. (C) No. 36528 OF 2008
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(a) representations dated 20.08.2008 before the 4th respondent
i.e., even much prior to coming into existence of Ext. P1
prospectus itself, seeking to make proper remedial measures:
lest their rights and interests should be affected in an adverse
manner, when compared with the similar rights of other students
who secured admission to the 2002-08 batch B.H.M.S., on the
basis of the Common Entrance Test and who were allotted to
different Institutions under different Universities. Nothing has
been stated in the counter affidavit filed by the 4th respondent as
to the manner in which Exts.P8 and P8(a) representations were
dealt with and at any rate, it cannot be said that the 4th
respondent was not aware of the adverse consequences that
would be resulted. Quite strangely, the 4th respondent chose to
publish Ext.P1 prospectus on 07.11.2008 stipulating a cut off
date as ‘31.10.2008’. Again some other petitioners/students
filed Ext. P9 representation before the Government seeking to
W.P. (C) No. 36528 OF 2008
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W.P.(C)No. 36529 of 2008
17
intervene on war footing in view of apprehended adverse
consequences to be followed. Clauses 25 and 26 of Ext.P1
prospectus which are relevant as to the power of the Government
to intervene, are extracted below :
Clause 25:
“Notwithstanding anything contained in the
prospectus the Government may at any time,
on their own volition or otherwise after calling
for the records of the case, revise any orders
passed by a subordinate authority.
Clause 26:
"The prospectus is subject to
modification/addition/deletion as may be
deemed necessary by the Government."
14. From the above, it is explicitly clear that the
Government had at no point of time on their volition or
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
18
otherwise, after calling for the records, had revised any orders
passed by a subordinate authority and further that the
prospectus was subjected to modification/addition/deletion as
might be deemed necessary by the Government. The callous
inaction on the part of the Government/Departmental authorities
even to consider the matter despite the adverse circumstances
pointed out vide Ext.P8, 8(a) and P9 representations cannot but
be deprecated. This is more so, when the third respondent
pursuant to the representations preferred by some of the
petitioners had instructed vide Ext. P10 reply dated 29.11.2008
that they had to approach the 4th respondent -the Principal and
Controlling Officer, Govt. Homoeopathic Medical College,
Thiruvananthapuram or the Government for redressal of their
grievances. The fact remains that the grievance projected by
the petitioners, as above, before the 4th respondent and the
Government was unfortunately left to have had a natural death.
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
19
15. It is pertinent to note from Ext. P15 (which is the full
text of Ext.P1 prospectus) that only a total number of ’15’ seats
are available for the M.D. (Homoeo) under General Merit, which
are to be filled up from the ‘most eligible candidates’, who
participated in the process of selection . As pointed out already,
there is absolutely no rhyme or reason in eliminating a group of
students like the petitioners herein who belong to the common
pool who secured admission to the B.H.M.S. Course (2002-2008
batch) on the basis of the Common Entrance Test as in the case
of the additional respondents herein and there is no rationale in
denying their chances to compete in the admission test for the
P.G.course [M.D. (Homoeo) ] for the year 2008-09 when no lapse
or fault is attributable to them. As it stands so, the more crucial
questions to be considered are:
(i) whether there is any justification in fixing
the cut off date as 31.10.2008 for completion
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
20
of Internship in the instant case;
(ii) whether any substantial loss will be caused
to the Government or the departmental
authorities, if the grievance of the petitioners is
redressed and
(iii) whether any prejudice will be caused to any
other candidate/student or the
Government/department if the claim of the
petitioners is considered and they are allowed
to take part in the process of selection.
16. The above vital aspects are seen unanswered in the
counter affidavit filed by the 4th respondent and no explanation
is offered by the learned Senior Government Pleader in this
regard, particularly when no reason is stated for not invoking the
power of the Government as provided under clause 25 and 26 of
Ext.P1 Prospectus which was admittedly issued on 07.11.2008,
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
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i.e., after the cut off date notified. It is quite evident from
Ext.P18 (with regard to the Calicut University) produced by the
petitioners (after obtaining a copy from the concerned
authorities invoking the power under the Right to Information
Act, 2005), that all examinations were conducted by the
Universities on time and that there was absolutely no fault or
lapse on the part of the students in getting the conduct of
examinations delayed in any manner . Similarly Ext.P19 issued
in respect of Dr. Padiar Memorial Homoeopathic Medical College
under the M.G. University also shows that the first, second, third
and fourth year B.H.M.S. Examinations of 2002-08 batch were
conducted according to the schedule of the University and that
they had not been adjourned or postponed for any reason
whatsoever. This being the position, the petitioners have got
every right to compete in the selection process for admission to
the Post Graduate Course [M.D. (Homoeo)] notified by the fourth
W.P. (C) No. 36528 OF 2008
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W.P.(C)No. 36529 of 2008
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respondent under Ext.P1 Prospectus and also under Ext. P2
issued by the third respondent, notwithstanding the cut off date
for completion of Internship as 31.10.2008. This is more so,
when the purpose of completion of Internship before
commencement of the Centralised Admission Procedure is taken
care of by Clause 4 of Ext.P1 prospectus itself.
17. It is worthwhile to go through the chronology of
events/hurdles which are to be crossed by persons like the
petitioners in connection with the admission in question. After
completing the final year examination and on coming out
successful, the students have to obtain provisional certificate
from the University. Thereafter, they have to obtain provisional
registration from the Travancore-Cochin Council of Homoeopathic
Medicines , which is a pre-requisite for enabling them to undergo
Internship conducted in the concerned college. After completion
of Internship, the students have to approach the Travancore-
W.P. (C) No. 36528 OF 2008
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W.P.(C)No. 36529 of 2008
23
Cochin Council of Homoeopathic Medicines again, from where
permanent registration like Ext.P14 series in W.P.(C) No. 36528
of 2008 and Ext. P15 in W.P.(C) 36529 of 2008 are to be
obtained. it is the said certificate that is to be produced at the
time of admission, as contemplated in Clause 4(a) of Ext.P1
Prospectus. Since the final registration certificate was given by
the Council only after completing the Internship as stated above,
which in turn has been produced at the time of examination as
stipulated in Clause 4(a) of the Prospectus, stipulation of the cut
off date for completion of Internship as 31.10.2008 cannot be
said to have any significance, particularly when such stipulation
is stated as for compelling the Universities to conduct the
examinations without any delay/ on time.
18. In the above facts and circumstances, this Court
hereby declares that the respondents are bound to finalise the
process of selection to the Post Graduate Course [M.D.(Homoeo)]
W.P. (C) No. 36528 OF 2008
&
W.P.(C)No. 36529 of 2008
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considering the petitioners as well, who have come out
successful in the written test held on 10.01.2009 pursuant to the
interim order passed by this court, notwithstanding the cut off
date for completing the Internship mentioned as ‘31.10.2008’
and the rank list shall be published accordingly, based on the
relative merits of all such candidates concerned and the
admission shall be completed on the basis of their ranks as
aforesaid, accommodating the best eligible candidates on the
basis of their merit, of course, subject to the rules of reservation
to the extent as applicable.
Both the Writ Petitions are allowed as above. No cost.
P.R. RAMACHANDRA MENON,
JUDGE.
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