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Judgment
Petitioner challenges the denial of allotment to Jubily Mission Medical College Trissur in the Mop up allotment alleging that candidates lower in rank
were given admission to that College.
The petitioner had appeared in the National Eligibility cum Entrance Test (NEET) UG 2020 for admission to undergraduate medical and allied
courses and had secured All India rank of 22662 and Kerala rank of 2863. In the first counselling conducted on 20.11.2020, she was alloted to Sree
Gokulam Medical College, Venjarammoodu â€" a Self Financing College, as per Ext.P1 memo. In the second phase of counselling and second
allotment, though she continued in the same college, the category of her admission was changed to all India merit as per Ext.P2 memo dated
10.12.2020. It is stated that when Ext.P3 notification was issued on 12.12.2020 calling for fresh options against the seats remaining vacant after the
second phase of allotment, the petitioner submitted Ext.P4 list of option. After the mop up allotment, when Ext.P6 allotment list was published on
20.12.2020, candidates with rank Nos.2913 and 12657 were seen allotted to Jubilee Medical Mission College in the State merit category and in the
NRI quota respectively. At the same time, the petitioner's name was not seen included in the list though she is rank no.2863. This Writ Petition is filed
at that stage stating that she was entitled to be allotted to Jubilee Medical Mission College, which was a college of her higher option, in preference to
candidates with lower rank. It is also her contention that Sl.no.29 in Ext.P6 allotment list with rank no.2913 was already alloted to Karuna Medical
College, Palakkad, another self financing college, in the second allotment. Similarly, sl.no.315 in Ext.P6 with rank no.12657 was allotted to another self
financing collge â€" Mount Zion Medical College, Adoor. The petitioner submits that there is no rationale in denying her allotment in the mop up round
in preference to those 2 candidates. It is her further case that she has to pay Rs.14 lakhs towards fee at Sree Gokulam Medical College; whereas the
fee at Jubilee Medical Mission College is only Rs.7.5 lakhs.
The 2nd respondent has filed a counter affidavit. In answer to the contentions relating to the admissions granted to rank nos. 2913 and 12657 in
Ground B of the Writ Petition, it is stated as follows in para.12:
The candidates with rank No.2913 (Application No.1163576) and 12657 (Application No.1133697) were allotted to Karuna Medical College,
Palakkad and Mount Zion Medical College respectively in the second allotment. The said candidates did not ""join"" the colleges to which they were
allotted during the second phase of allotment so as to make them ineligible for further counselling (mop up) and hence were eligible to register the
options for mop up allotment. It cannot be said that they had indulged in seat blocking, the prevention of which is scope and purport of Regulation
5A(4) of the Graduate Medical Education Regulations with Appendix-F thereto. The Online options of the said candidates for mop up admissions
were considered accordingly and they were allotted to Jubilee Mission Medical College. In Jubilee Mission Medical College, after the second phase of
allotment, there was 1 vacancy existing for MBBS and another vacancy had arisen due to college transfer, to which seats admission of eligible
candidate were allowed as per mop up allotment. No vacancy in MBBS course exists in Jubilee Mission Medical College after the mop up round. It is
most humbly submitted that the petitioner cannot impugn the admissions granted to the said candidates without them in the party array.
It is stated that mop up counselling is conducted for filling up the remaining vacant seats after the centralised allotment process as provided in
clause 11.6.9 of the KEAM Prospectus, which authorise the 2nd respondent to issue necessary orders in due course. It is stated that Ext.P3
notification was issued laying down the guidelines for mop up counselling in accordance with the same. It is further stated that the mop up counselling
is over and the students have got admitted to the allotted colleges. The 2nd respondent has also stated that medical admissions are made in
accordance with the provisions contained in the Graduate Medical Education Regulations, 1997. Appendix F to regulation 5A (4) provides for the
matrix applicable and permissibility to students to exercise fresh choice during counselling. As per this appendix, any student who joined a college
pursuant to second round of All india Quota counselling will not be eligible for further counselling including second round of State Quota counselling. It
is stated that a student who joined a college in the second round of State Quota counselling would be ineligible for further counselling. It is further
stated that appendix F is provided in the regulation in order to prevent seat blocking in common counselling for admission to MBBS course; it provides
for permissibility to exercise fresh choice during counselling and forfeiture of fee. As per this matrix under Appendix F, a candidate who did not join
after second round of counselling of State Quota becomes ineligible for further counselling only if he or she joins the college; whereas a candidate who
joined becomes ineligible for further counselling. Relying on the judgment in Rachit Sinha & Ors. v. Unon of India (UOI) & Ors. (Writ Petition
(C).Nos.357, 361, 366 and 424 of 2018) it is stated that there is no infringement of any legal right on account of the change of the method of
counselling and the reduction of chances of admission does not entail in violation of any right. The Medical Council of India decided to make changes
to the method of admissions to the Postgraduate courses to arrest the blocking of seats by certain candidates which was detrimental to the interest of
meritorious candidates. It is further stated that taking note of the enormous difference in the fee structure between the Self Financing Medical
Colleges and the Govt. Colleges as well as that between the NRI seats and other seats in the Self Financing Medical Colleges, free exit has been
permitted even after second round of State quota admissions, in the State of Kerala subject to restrictions. Transfer would be permitted to students
admitted in Self Financing Medical Colleges to Government Medical Colleges and transfer from NRI seat to other seats is permitted between two self
financing colleges or in the same college. But transfer would not be permitted to students admitted in one Govt. Medical College to another and
students from one self financing medical college to another self financing medical college. It is also stated that the sdtudents allotted to MBBS/BDS
courses through All India counselling are not allowed to participate in the mop up counselling. In the case of the petitioner, she had registered 13
options for mop up counselling including NRI quota seat in Jubilee Mission Medical College as 11th option. It is stated that as she had joined a self
financing college as per the allotment in the second phase of State Quota Counselling, her movement to another Self Financing College was blocked as
per the guidelines for mop up allotment.
The petitioner has filed a reply affidavit stating that Appendix F of the Graduate Medical Education Regulations do not have any applicability in the
case of the petitioner. It is stated that the respondents acted in violation of Clause 11.6.7 of the prospectus by allowing the 2 candidates who did not
choose to join even after they were allotted to self financing colleges; as per clause 11.6.7 a candidate who has not joined the colleges to which he/she
is allotted will not only be ineligible to participate in the mop up counselling but will entail forfeiture of all the existing options. It is therefore stated that
Sl.Nos.29 and 315 in Ext.P6 list, who were already allotted to self financing medical college as per Ext.P7 allotment list, lost their right to participate in
any other counselling on account of their non-joining. It is stated that even on 29.12.2020 one seat was filled up in the Jubilee Medical Mission College
admitting rank no. 3161, who is also ranked below the petitioner. According to the petitioner, Ext.P3 mop up notification though provides that transfer
is not permitted from one self financing college to another, transfer from NRI seat to Government/minority seat shall be permitted as there is no
restriction for the same. It is stated that the petitioner had opted for NRI seat in Jubilee Mission Medical College, as permitted in Ext.P3 notification
for mop-up. It is stated that her movement to another self financing college cannot be said to have been blocked after the second phase of State quota
counselling, because she is not a student who was granted allotment in the second phase of State quota counselling; the only change occured for her
was that she was changed from State merit to all India merit in the very same college even without any option from her.
Heard Sri P.Nandakumar, the learned counsel for the petitioner and Sri V.Manu, the learned Senior Government Pleader who submitted that there
occurred some inadvertent mistakes in the counter affidavit in stating the number of seats which remained vacant. Relying on the judgments in Arvind
Kumar Kankane v. State of U.P & Ors. 2001 KHC 1650 : 2001 (8) SCC 355 : AIR 2001 SC 2800; Veena Guptaner (Dr.) v. University of Delhi
[1994 KHC 1650 : AIR 1994 Del. 108; Hanna Thasnim v. State of Kerala & Ors. 2014 KHC 210 : 2014 (2) KLT SN 20 : ILR 2014 (2) Kerala 388;
judgment in WP(c).No.35202 of 2018 which was affirmed in the judgment in W.A.No.2230/2018 and the judgment in W.P(c).No.25637 of 2020
which was affirmed in the judgment in W.A.No.1524 of 2020, the learned Senior Government Pleader argued that the there is no illegality in the
process of mop up allotment and that the petitioner is estopped from challenging at this point of time, that too, without impleading any of the students
on the party array.
The contention of Sri. Nandakumar is that in view of subclause (iv) of Clause 11.6.7 of the prospectus, the candidates mentioned in ground B have
become ineligible for participating in the mop up allotment. Therefore, it is necessary to have a look at Clause 11.6.7, which reads as follows:
11.6.7. General Rules related to registering of Options:
(i) Candidate can register all the available options if he/she desires so. However, it is not compulsory that the candidates should exercise all the
options.
(ii) A candidate will not be allotted a seat in a course of a college if he/ she has not opted the course-college combination during option registration
process of CAP-2020.
(iii) A candidate is bound to accept an allotment as per the priority registered in the Option list and he/she has to surrender the seat already occupied
by him/her, if he/she is allotted based on options furnished against arising/future vacancy. Request to retain the existing admission after an allotment is
made, based on the option registered, will not be considered under any circumstances.
(iv) Failure to report for admission in the allotted institution, after remitting the required fee within the stipulated time will result in the forfeiture of
his/her allotment to that course and cancellation of all the existing options in the stream to which that allotment belongs.
(v) For each phase of CAP 2020 subsequent to the initial phase, confirmation of the higher order options by loging in to the Option Registration Page
and clicking the ‘confirm’ button is mandatory to participate in that phase of allotment even if no cancellation/re-arrangement of options is
desired. Non-confirmation of higher order options for a particular phase of CAP will lead to automatic deletion of higher order options belonging to the
course(s) included in that phase, making them unavailable for the subsequent phases also.
Mop up counselling is governed by Clause 11.6.9, which reads as folows.
11.6.9: Mop-up Counseling: Mop-Up Counselling for filling up the remaining vacant seats, if any, will be conducted after the completion of the
Centralised allotment process. All qualified candidate included in the rank lists concerned is entitled to attend the Mop-Up
Counselling. However, the eligibility/claims of candidates to participate in a Mop-Up Counselling shall be in accordance with the conditions in the
relevant Government Orders/Orders of the Hon'ble Courts, concerned Central Councils. The courses under Engineering stream are listed in Annexure
II(1)(b). The Commissioner for Entrance Examinations is authorized to issue necessary orders regarding Mop-Up Counselling in due course. Detailed
notification will be issued at the time of allotment."" xxxx
Clause 11.6.9 would show that any candidate included in the rank list can participate in it subject to any other Government order. The ineligibility
incurred by them on account of non-joining does not incur any disqualification in participating in the mop-up counselling, which is governed by separate
orders issued by the Commissioner for Entrance Examination/Government. At the same time, a candidate who joined a self financing college becomes
ineligible for mop-up allotment as held by the Division Bench of this Court in Hanna Thazneem's case (supra). The judgments in Veena Guptaner
(Dr.) v. University of Delhi [1994 KHC], the judgment dated 29.10.2018 in WPC.35202/18 as affirmed in W.A.2230/18, judgment in W.P.25637/2020
affirmed in W.A.No.1524/2020 etc. would also fortify the same proposition.
As pointed by the learned Senior Government Pleader, this Court has in the judgment dated 7.8.2019 in W.P(C).No.21547/2019 repelled the
challenge to the guidelines issued for mop up counselling and upheld the admissions given to the candidates with lower rank in similar circumstances.
In that case, Commissioner for Entrance Examinations had called for options for mop up counselling for admisions to MBBS seats in NRI quota.
There was a condition that candidates who stand admitted under All India quota shall not be allowed to participate in the mop up counselling. In other
words, the candidates, who were admitted to MBBS course under all other categories would be permitted to take part in the mop up counselling. The
notification had provided that transfer would not be permitted to students from one Govt. Medical College to another Govt. Medical College and from
one self financing Medical College to another self financing medical college. It further provided that transfer would be permitted in the mop up
counselling to students admitted in Self Financing Medical Colleges to Government Medical colleges and vice versa. Transfer to NRI seats would be
permitted to Government/Minority seat between 2 self financing colleges or in the same college, even if it is in the same course. The petitioners
therein had secured higher rank. Therefore, they claimed that they should be given the opportunity to opt for admission in a college of their higher
option. Relying on the judgment in W.P(c).No.35202/2018 this Court held that the spot admissions conducted in respect of seats which fall vacant by
unforseen circumstances and filled up by a candidate with lower rank cannot be interfered with. Relying on the judgment in Arvind Kumar Kankane
v. State of U.P & Ors. [2001 KHC 1650] it was held that the filling up of a seat by a candidate with lower rank in similar circumstances can only be
treated as one in a fortuitous circumstance and there would not be any unreasonableness. At the same time all of them are governed by the provisions
under the Undergraduate Medical Admission Rules which provide for the consequences after each phase of conselling/allotments as well as
admissions as directed in interim order passed in Rachit Sinha & Ors. v. Unon of India (UOI) & Ors. It cannot be said that the Graduate Medical
Admission Rules issued by the erstwhile Medical Council of India is not applicable to the petitioner.
Moreover even though the petitioner claimed that she is entitled to be given admission in a self financing college of her higher option in preference
to the candidates who are ranked lower to her, none of them are made parties to this Writ Petition. The learned Senior Government Pleader on
instructions submitted that all the seats for MBBS course in the Jubilee Medical Mission Hospital have already been filled up. Therefore, even
assuming tha the petitioner was eligible for participation in the mop up counselling and for transfer from one self financing college to another from all
India seat to NRI seat, irrespective of the provisions contained in the prospectus and also the guidelines issued for mopup allotment, no relief can be
granted to her.
Accordingly, the Writ Petition is dismissed.