IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2017 PRESENT THE HON'BLE MR. JUSTICE JAYANT PATEL AND THE HON’BLE MR. JUSTICE B A PATIL WRIT PETITION NOS.39109-39110/2017 (EDN–MED–ADM) Between:
1. Vishnu Varma, Aged about 19 years, S/o Dr.Ravigopal Varma, #12, 3rd Cross, Poojari Layout, RMV 2nd Stage, Bengaluru – 560 094.
2. Akshata P, Aged about 18 years, D/o Prasann Kumar M S, 252, 3rd Stage, 3rd Block, Basaveshwaranagar, Bengaluru – 560 079.
... PETITIONERS (By Sri.Ajoy Kumar Patil, Advocate) And:
1. Karnataka Examinations Authority, Sampige Road, 18th Cross, Malleswaram, Bengaluru – 560 012, Represented by its Executive Director.
2. The Administrative Officer, Karnataka Examinations Authority, Sampige Road, 18th Cross, Malleswaram, Bengaluru – 560 012.
3. The State of Karnataka, Represented by its Principal Secretary, Health & Family Welfare Services (Medical Education), Vikasa Soudha, Dr.B R Ambedkar Veedhi, Bengaluru – 560 001.
(By Smt. Niloufer Akbar, AGA for R3;
... RESPONDENTS Sri.N.K.Ramesh, Advocate for R1 & R2) These Writ Petitions are filed under Article 226 of the Constitution of India praying to declare that the condition imposed in the notification issued by the R-1 dated 22.08.2017 vide Annexure–E that ‘those who have been allotted medical seat are not eligible to participate’ is illegal, arbitrary and violative of Article 14 of the Constitution of India and etc., These Writ Petitions coming on for Preliminary Hearing this day, JAYANT PATEL J, made the following:
ORDER The petitioners have preferred the petitions seeking the relief interalia to declare the condition imposed in the Notification dated 22.08.2017 as illegal and arbitrary and it is also prayed that the said condition is contrary to the direction issued by the Apex Court in its order dated 09.05.2017. The petitioners have further prayed, to direct the respondents to permit the petitioners to participate in the Mop-up round of counselling for the surrendered medical seats being conducted by the Karnataka Examinations Authority (KEA, for short).
2. We have heard Mr.Ajoy Kumar Patil, learned counsel appearing for the petitioners and Mr.N.K.Ramesh, learned counsel appearing for the respondent Nos.1 and 2 and Ms.Niloufer Akbar, learned AGA for the respondent No.3.
3. It was submitted that when the Apex Court passed the order on 9th May 2017 in W.P.No.267 of 2017 and allied matters for All India Quota seats vide direction at Para 4, it was specifically observed that those students who have opted for admission in All India Quota seats and in the Deemed Universities shall not be eligible for participation in any other round of counselling. Whereas, for the counselling for State seats, the said bar was not expressly provided while issuing directions at Paras 6 and 7. Therefore, it was submitted that when the Apex Court consciously omitted, the said participation in other counselling sofar as the State seats are concerned, should be permitted by KEA i.e., in the Mop-up counselling. It was also submitted that, as per the decision of the Apex Court in the case of ASHA VS. PT. B.D.SHARMA UNIVERSITY OF HEALTH SCIENCES AND OTHERS reported in [2012] 7 SCC 389, more particularly, observations made at Paras 24 and 26, the meritorious students should be given opportunity to opt for admission in MBBS and college of the choice of the students as per inter se merit. If the petitioners are not permitted to participate in the third round of counselling which is known as Mop-up counselling, the same would result into depriving the meritorious students for opting for admission in the college of his/her choice. Hence, such condition imposed by KEA which is the agency for counselling is illegal and therefore, this Court may interfere.
4. Whereas, Mr.N.K.Ramesh, learned counsel appearing for KEA submitted that it is not a new condition imposed by KEA for the first time but, when the admission process had started, it was already specifically provided for first and second round of counseling, with the specific note that if any seats remain after second round of counselling, there may be third round of Mop-up counselling but, such candidates who have not been allotted any seats in the previous two rounds of counseling, shall only be eligible to participate. It is submitted that the condition imposed is with a view to have certainty in the admission and if a candidate has already opted seat in the second round of counselling and had opted the college and if allowed to change the option, it would result into disturbing the admission already granted but may create chaotic situation. Therefore, in the larger interest, the decision is taken to regulate the admission process for left out seats and such decisions is not arbitrary and this Court may not interfere.
5. We may record that, in the brochure of the admission which started from 05.07.2017 at page 23 following was the instructions already made known to the students concerned:
“PROCESS OF ALLOTMENT OF SEATS AND ADMISSION and POST SEAT ALLOTMENT PROCEDURE – CHOICES BEFORE A CANDIDATE The seat matrix issued by the Government for each discipline will be adopted for allotment seats. College wise, course wise and category wise seat matrix issued by Government will be hosted on the KEA website for the information of the candidates and parents.
The allotment of seats will be conducted in two rounds and each round consists of three phases and each phase consists of number of iterations.
1. First Round 2. Second Round Note: If any seats remain vacant after the second round, a mop round may be conducted for all categories of seats, in which only candidates who have not been allotted any seat in the previous two rounds would be eligible to participate.”
(Emphasis Supplied) 6. Therefore, all candidates were made to know that mop-up round of counselling shall be only for those candidates who are not allotted seats in the previous two rounds of counselling. Be it recorded that, normal rounds of counselling are only two. But in order to see that the seats may not lapse on account of non- availability of candidate at the first and second round of counselling, the third round of mop-up counselling is only for left out seats. In normal circumstances, students who have opted seats at the first and second round of counselling is required to join the college at the end of second round of counselling in any case prior to beginning of mop-up counselling. Then only, the admission agency will be in a position to know the number of left-out seats in the respective colleges.
7. If the students had joined the college based on the seats allotted in the first and second round of counselling and thereafter, in the mop-up counselling for the left out seats, only for the students who could not get the admission in the first and second round of counselling are considered, such an exercise of power can not be said to be arbitrary or unreasonable. The essential purpose of mop-up round is to give certainty to the admission already granted and not to create chaotic situation.
8. It is to be noted that the merit should be the criteria for such an exercise and also for the college but such procedure has to end somewhere at some point of time. As per the prevailing merit at the first round and as per the prevailing merit at the second round of counseling once the admissions are finalized, it should rest there. Otherwise, it would be impossible to regulate the mechanism of admission. In any case, one cannot ascertain the availability of the left out seats unless the admissions already granted at the first and second round of counselling are crystalised, opted and accepted. Therefore, one has to consider inter se merit, and such merit is to be considered from amongst the eligible students, at that stage. If the petitioners have already opted for admission by accepting the admission and have joined the college, it cannot be said that the right on the basis of merit would continue even thereafter on the ground as sought to be canvassed.
9. The interpretation of the directions of the order of the Apex Court dated 9th May 2017 as canvassed cannot be accepted for the simple reason that the process in which the Apex Court wanted it to be regulated has already observed in the order. But thereby it cannot be said that no other additional mechanism be provided by the admission agency on the aspects for which no specific direction has been issued by the Apex Court.
10. The contention for the casus omissus is on the misconceived premise because the orders of the Court cannot be interpreted like that of the Statute. What is not permissible can be prohibited by the order of the Court but thereby, it cannot be said that the additional aspects for regulating the mechanism by maintaining the directions of the Court, is not permissible.
11. Under the circumstances, same situation would result as a consequence even if the observations made by the Apex Court are considered in the above referred decision in the case of Asha supra. As observed by us earlier, the inter se merit is considered at the relevant point of time and not for all time to come as sought to be canvassed.
12. Apart from the above, if certainty is not attached to the admissions already granted and opted by the students by joining the respective college, it may result into chaotic situation. Further, it is not a matter where the condition of the bar is provided abruptly but it is a matter where such zone of consideration was expressly provided from the initiation of the admission and counselling process.
13. The petitioners are deemed to be aware of the said conditions incorporated in the brochure. As per the decision of this Court in the case of Kum.Pavithra B., Vs. Karnataka Examinations Authority, passed on 16.08.2017 in W.P.No.36556/2017, the conditions imposed in the brochure are to be strictly followed. Merely because the petitioners did not get the admission in the second round of counseling in the college of their choice, later on cannot be permitted to assail the condition which was impliedly accepted by them.
14. In view of the above, we do not find that any case is made out for interference. Hence, the petitions are dismissed.
Sd/- JUDGE Prs* Sd/- JUDGE