IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R DEVDAS WRIT PETITION Nos.21682-21688/2018 (EDN-MED-ADM) Between:
1. Dr.Manjunath M., Son of P.M.Munireddy, Aged 24 years, Residing at No.1, 17th Cross, Lakkasandra, Bengaluru – 575 030.
2. Dr.Amrutha G.M., Daughter of Maheshwarappa G.S., Age 26 years, Residing at “Shree Aurobindo Residential School, Shankaraghatta, Bhadravati, Shivamogga – 577 451.
3. Dr.Madhuri N., Daughter of M.N. Narahari, Aged 25 years, Residing at No.56, G-2, 3rd Cross, Ramarao Layout, Kathrikuppe Main Road, Banashankri 3rd Phase, Bengaluru – 560 085.
4. Dr.Mallikarjun Prabhu P., Son of Mr.Kantheppa Nanjundappa Prabhkar, Age 27 years, Residing at No.373, 80 Ft. Road, R.T.Nagar, Bengaluru – 560 032.
5. Dr.Sendhil Kumar M., Son of G Mohan, Aged 39 years, Residing at No.1604, “Sendhil House”, 1st Cross, Sumati Nagar, Robertson Pet, Kolar – 563 122.
6. Dr.Humera Nazish, D/o K.A.Nafees Ahmed, Aged 24 years, R/at No.151, 32nd Main, 5th Cross, J.P.Nagar, 1st Phase, Bengaluru – 560 078.
7. Dr.Namratha A., D/o Ashok A.V., Aged 29 years, R/at No.65, NHCS Layout, 3rd Stage, 4th Block, Basaveshwara Nagar, Bengaluru – 560 079. …Petitioners (By Sri. Dore Raj, Advocate) And :
1. State of Karnataka, Department of Medical Education, Ananda Rao Circle, Bengaluru – 560 009. (Represented by Secretary).
2. Karnataka Examination Authority, Sampige Road, 18th Cross, Malleshwaram, Bengaluru – 560 012. Represented by its Executive Director.
3. Medical Council of India, Pocket -14, Sector – 8, Dwarka Phase – 1, New Delhi – 110 077.
Represented by its Registrar. ...Respondents (By Sri. Lakshminarayana, AGA for R1; Sri.N.K.Ramesh, Advocate for R2;
R3 dispensed with order dated 17.06.2019) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the notice dated 08.05.2018 issued by Karnataka Examinations Authority for Mop- up round seats for PG Medical and Dental Degree/Diploma Courses in Karnataka 2018-2019 in Association with Karnataka State PGET – 2018 by Department of Medical Education, as arbitrary and illegal consequently allowing all the petitioners who have verified documents in first and second round to participate in the Mop-up round counseling. A copy of notice dated 08.05.2018 vide Annexure – A and etc., These Writ Petitions coming on for Preliminary Hearing in 'B' Group this day, Devdas J, passed the following:
ORDER The petitioners are MBBS Degree holders and appeared for NEET 2018 examination for the purpose of admission to GPEV 2018-19. The petitioners have approached this Court with the following reliefs:-
a) Issue writ of certiorari, order or direction from this Hon’ble Court quashing the Notice dated 8th May, 2018 issued by Karnataka Examinations Authority for Mop-up round seats for PG Medical and Dental Decree/Diploma courses in Karnataka 2018-2019 in association with Karnataka State PGET – 2018 by Department of Medical Education as arbitrary and illegal consequently allowing all the petitioners who have verified documents in first and second round to participate in the Mop-up round counseling.
b) Issue a writ of mandamus, certiorari or any other writ or order or direction or declaration for so called Mop-up round seats for PG Medical and Dental Degree/Diploma courses in Karnataka 2018-2019, Bulletin for Karnataka State PGET – 2018 issued by Department of Medical Education in association with Karnataka Examinations Authority, as ab initio void and vitiated., c) Issue a writ of mandamus or any other writ order or direction to Respondent Nos 1 and 2 not to collect fine/penalty from the candidates who have not paid the prescribed fee during the surrender of the seat allotted and not joined the college , if so collected to refund the same to the candidates.
2. The learned counsel for petitioners submits that the prayer at (a) and (b) have become infructuous. However, with respect to petitioners No.2,4 and 5, this petition survives only to be heard on prayer(c). In other words this petition is heard with respect to prayer C restricted to petitioners 2, 4 and 5 herein.
3. The learned counsel for the petitioners submits that in the second round of counseling, the petitioners 2, 4 and 5 participated and they made choice of the institution. However, they did not pay the prescribed fee to the selected institution since it is contended that they were not prepared to pay the fee prescribed therein. Therefore, they surrendered seats that were selected and on surrender of seats, the cancellation order/surrender order was given to the petitioners on payment of Rs.1,00,000/- in terms of Clause 16 of the Karnataka State Revised Information Bulletin for Centralised Counseling for Post Graduate admissions to Degree/Diploma Medical and Dental Courses which is the brochure/guidelines.
4. The learned counsel for the petitioner submits that Clause 16 would provide that a candidate, if he/she failed to make payment of prescribed fee in the institution that is selected, only then the provision enables the authority to impose the penalty of Rs.1 lakh. The learned counsel submits that if a candidate immediately surrenders a seat opting not to join the institution, then the penalty leviable under Clause 16 does not become operational. Therefore, the action of the authority in collecting one lakh rupees from the petitioners is contrary to the provision.
5. Per contra, Sri N.K. Ramesh, learned counsel for the respondent Karnataka Examination Authority draws the attention of this Court to Clause 14 which pertains to Second Round Seat Allotment. As per Clause 14.2 (c ) a candidate who is not allotted any seat in first round and deposited the original documents, is eligible for councelling in the second round. The petitioners herein fall in this category. Further, during Second Round Councelling, Clause 14.4(b) provides that the candidates who are allotted seat to any college/course are required to pay the prescribed fees (if not paid) and should compulsorily report to the colleges on or before the last date mentioned in admission order and update the details through their log-in-ld to KEA. While Clause 14.4 (c) provides that if any candidate fails to report to the college after allotment of seats in the Second Round, legal action will be initiated against such candidate in accordance with law. As per clause 14.4 below Note(2) provides, that all the candidates who have been allotted afresh in this round should compulsorily join the colleges after making payment and collecting admission order at KEA and report to KEA portal for confirmation otherwise seat gets cancelled. Note 3 provides that if the fee paid by the candidates in the earlier round if any, will be adjusted upon allotment of a seat in this round. In the light of the said provision, it is submitted by the learned counsel that the petitioners having exercised their choice of seats were mandated by regulation that they have to pay the fee in the institution which they have chosen and if they failed to do so, then consequences will flow and it is submitted that once the choice is made by the candidate, the said seats will be blocked and will not be available for any other candidates. It is in this view, penal provisions are imposed in the regulations of brochure. The learned Govt. Advocate supports the submission of the learned counsel for Karnataka Education Authority.
6. We have heard the learned counsel for both the parties and perused the writ papers. The regulation in clear terms would mean that a candidate is provided an opportunity to select the institution where he would like to study. As submitted by the learned counsel for the Authority, this regulation is provided to strengthen the method in order to eliminate arbitrariness and prevent blocking of seats, in the light of several decisions of the Hon’ble Supreme Court.. It is in the experience of the Authority that candidates would block the seats and thereafter wait for an opportunity and thereafter come back and surrender the seat which would act in detrimental manner to the candidates who have not been afforded an opportunity since the seats were blocked by such candidates. In the light of this experience, the regulation/guidelines have been framed to see that candidates do not block the seats and thereafter, come back and surrender the seats. In view of the same, the said clause would impose penalty of Rs.1 lakh on a candidate seeking Medical Degree while penalty of Rs.50,000/- is imposed on the candidate seeking Diploma.
7. The relevant clause 16 makes it very clear that every candidate including in-service candidate shall pay a sum of Rs.1,00,000/-(Rupees One Lakh only) for Degree and Rs.50,000/- (Rupees fifty thousand only) for Diploma to the Government in case he/she on payment of fees during counseling and fails to join the course on the specified date mentioned in the admission order. It is evident from the cancellation order issued to the petitioners that after having chosen seats they did not pay the fees, but surrendered the same. Therefore, at the request of the petitioners, the choice was cancelled and cancellation order/surrender order has been issued by the authority at the instance of the petitioner. Hence penalty has been imposed as per Clause 16. Therefore, after having paid the penalty and petitioners having chosen another college, it does not lie in their mouth to come back and say that they are not liable to pay penalty of Rs.1,00,000/- and the same should be reimbursed. This submission goes contrary to the provision. The very fact the petitioners sought cancellation of allotted seat, paid penalty and they were permitted to make subsequent selection, the arguments of the learned counsel for the petitioners that it cannot be treated as cancelled and surrender which has happened immediately, cannot be countenanced. Therefore, the argument that Clause 16 does not permit imposition of penalty does not hold water.
8. Having paid the penalty in terms of the provision, the petitioner now cannot turn around and seek reimbursement of the penalty that has been imposed upon them. In the light of the above, prayer C in the petition which has been pressed into service by the learned counsel for the petitioners cannot be allowed and the same is rejected. The petitions are disposed off accordingly.
SD/- JUDGE SD/- JUDGE Nm