SUMI JOHNSON Vs. COMMISSIONER FOR ENTRANCE EXAMINATIONS

JUDGEMENT

(1.) W. A. No. 1457 of 2000 is filed by respondent No. 4 in O. P. No. 6672 of 2000. W. A. No. 1461 of 2000 is filed by the petitioner in O. P. No. 6672 of 2000. W. A. No. 1736 of 2000 is filed by respondents 1 to 3 in O. P. No. 6674 of 2000. For convenience, hereafter we shall refer to the parties by their ranks in the Original Petition.

(2.) Both the petitioner and respondent No. 4 claimed a seat in the quota reserved for the children of Exservicemen. There is no dispute that both are eligible to have a seat in that quota. The petitioner secured rank No. 2912 in the ranked list for medical courses. Respondent No. 4 secured rank No. 3792. Both the petitioner and respondent No. 4 were called for counselling in the order of their ranks. As per the procedure, at the counselling, the candidate is entitled to select his course subject to availability and eligibility. The petitioner as her first choice sought a free seat in the B.H.M.S. course in the Dr. Padiyar Memorial Homoeo College, Ernakulam. As her second choice she sought a payment seat in the same college. As her fifth choice the petitioner chose a free seat in the Government Homeopathic College in Trivandrum. Respondent No. 4 sought as her first choice a free seat in the Government Homoeopathic College at Trivandrum. Her second choice was for B.Sc. Nursing at Medical College, Calicut. Since at the relevant time, no free seat for B.H.M.S. course in the case of Exservicemen quota was available, neither the petitioner nor respondent No. 4 were able to get admission in a free seat in B.H.M.S. course in any college. Therefore, the petitioner was given the payment seat in Dr. Padiyar Homoeo College, Ernakulam, her second choice. Similarly, respondent No. 4 was given a seat in B.Sc. Nursing in Calicut Medical College, her second choice. Both the candidates joined the respective courses.

(3.) Thereafter a free seat in B.H.M.S. course in the Government Homoepathic Medical College at Trivandrum became available. The concerned authority did not offer that seat to the higher rank holder among the Exservicemen quota candidates, namely, the petitioner. Proceeding on the basis that respondent No. 4 who had a lesser rank, but who had made the first option for a free seat in B.H.M.S. course in Trivandrum Government Homeopathic Medical College, the authority offered that seat to respondent No. 4. In otherwords, the claim of the petitioner based on her rank was ignored on the basis that a free seat in Trivandrum Government Homeopathic Medical College in B.H.M.S. course was only the fifth choice of the petitioner. Respondent No. 4 accepted the seat in Trivandrum Government Homeopathic Medical College. According to her counsel, she was compelled to accept it and leave the Nursing course at Medical College, Calicut. Whatever it be, the free seat that became available, was given to respondent No. 4. It is at this stage that the petitioner, the higher rank holder among the candidates eligible for a seat in the Exservicemen quota, approached this Court with the Original Petition, O. P. No. 6672 of 2000 praying that a direction may be issued to the Commissioner of Entrance Examination and the other authorities, to accommodate her in a free seat in B.H.M.S. course on the basis of her rank since the free seat that became available for the Exservicemen quota should have been offered to her first, in view of her rank. The Original Petition was opposed by the Controller of Examinations and respondent No. 4 by pointing out that under Clause.11.10 of the prospectus the option of choice of the candidate would prevail and since respondent No. 4, though lesser in ranking, had opted as her first choice, for a free seat in the Government Homeopathic College, Trivandrum, the seat was rightly offered to respondent No. 4. The higher rank of the petitioner was irrelevant in view of the option exercised by the petitioner. The learned Single Judge held that this stand adopted by respondent Nos. 1 to 3 on the one hand and respondent No. 4 on the other, could not be accepted and the provision in Clause.11.10 of the prospectus, if it sought to ignore the ranking of the candidate concerned, has to be held to be discriminatory and has to be held to be not operative to prevent the petitioner from claiming the free seat that became available at a later point of time. The learned single Judge, therefore, directed that the free seat that became available given to the petitioner. It is feeling aggrieved by this that respondent No. 4 and respondent Nos. 1 to 3 have come up with these two separate appeals. The petitioner has appealed against the refusal of the learned single Judge to order refund of the payment made by the petitioner for securing the payment seat and the enhanced fee paid by her for the payment seat during her continuance in that seat.