Kerala High Court
Roshan Rahman P.K vs Dr.Aruna Parvathy on 13 September, 2012
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934
RP.No. 546 of 2012
---------------------------
[JUDGMENT OF THIS HON'BLE COURT DTD. 04/06/2012 IN
W,P.(C).NO.11215/2012]
...........
PETITIONERS/NON PARTIES:
------------------------------------------
1. ROSHAN RAHMAN P.K.,
D/O.ABDUL RAHMAN AND W/O.MUHAMMED ANEES .P.
AGED 28, ,'ASSAR',
ADIVARAM,KUNNAPPALLY P.O.,PERUNTHALMANNA.
2. BHAVYA K.S,
D/O.K.KUNHIKANNAN, '
AGED 25, `SURABHI' HOUSE,
POST KARIYOD SOUTH, THALSSERY, KANNUR.
3. ROSEMOLE JOSE,
D/O.P.P.JOSE, PARAPPILLY HOUSE,
OPP.ST.JOSEPH'S HIGH SCHOOL,ANKAMALY, ERNAKULAM.
BY ADV. SRI.G.KRISHNAKUMAR.
RESPONDENTS/PETITIONERS & RESPONDENTS:
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1. DR.ARUNA PARVATHY,
D/O.A.K.LALKUMAR, THUSHARA, VADAKKEVILA P.O,
MANNAD, KOLLAM DISTRICT - 691 010.
2. DR.SOUMYA V.S,
D/O.M.SADANANDAN, TC 20/2146,VILAYILVEEDU,
KARAMANA P.O.,THIRUVANANTHAPURAM - 695 002.
3. DR.DIVYA V.K.P,
D/O.LATE SRI .KRISHNA MOOSAD, JANAKI RANG,
THRIKKANDIYOOR,THIROOR, MALAPPURAM DISTRICT - 676 101.
R.P.NO.546/2012:
4. DR.SHAMNA B.N,
D/O.MOHAMMED BASHEER, SHAMINAS VILLA, KARAKKAMALAPAM,
NEMAM P.O.,THIRUVANANTHAPURAM DISTRICT - 695 020.
5. STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
6. THE PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF HIGHER EDUCATION,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001.
7. COMMISSIONER OF ENTRANCE EXAMINATIONS,
O/O.COMMISSIONER OF ENTRANCE EXAMINATINS,
SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.
8. PRINCIPAL AND CONTROLLING OFFICER,
GOVERNMENT HOMOEPATHIC MEDICAL COLLEGE,
IRIMUTTAM P.O,THIRUVANANTHAPURAM-695 001.
9. CHAIRMAN & CONVENER,
SELECTION COMMITTEE
FOR ADMISSION TO THE PG COURSE IN HOMEOPATHY,
GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE,
IRIMUTTOM P.O.,THIRUVANANTHAPURAM-695 001.
10. PRINCIPAL,
GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE,
IRIMUTTAOM. P.O.,THIRUVANANTHAPURAM-695 001.
R1 TO R4 BY ADV. SRI.C.M.NAZAR,
R5 TO R10 BY GOVERNMENT PLEADER SRI. JOSEPH GEORGE,
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 03-09-2012
ALONG WITH W.P.(C). NO. 15989/2012, THE COURT ON 13/09/2012
PASSED THE FOLLOWING:
R.P.NO.546/2012:
APPENDIX
PETITIONERS' ANNEXURES:
ANNEXURE-I: COPY OF THE APPLICATION DTD. 20/04/2012 UNDER RTI ACT BY ONE
MUHAMMED KUTTY.
ANNEXURE-II: COPY OF THE REPLY OF 10TH RESPONDENT DTD. 02/06/2012.
RESPONDENTS' ANNEXURES: NIL.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
T.R.RAMACHANDRAN NAIR, J.
- - - - - - - - - - - - - - - - - - - - - - - - - -
R.P.No.546/2012 in W.P.(C).No. 11215/2012
& W.P.(C) No.15989/2012
- - - - - - - - - - - - - - - - - - - - - - - - - -
DATED THIS THE 13TH DAY OF SEPTEMBER, 2012
JUDGMENT
The review petition is filed by the petitioners therein who are not parties in the writ petition. The same is filed against the judgment in W.P. (C) No.11215/2012. W.P.(C) No.15989/2012 is filed by the petitioners in the said writ petition.
2. First I will consider the pleas raised by the review petitioners. The writ petition was disposed of by this Court by judgment dated 4.6.2012. At the time of filing of the writ petition, the petitioners in the writ petition who are respondents 1 to 4 in the review petition, were studying for Postgraduate course in Homoeopathy in Repertory, in the Government Homoeopathic Medical College, Thiruvananthapuram. The duration of the course is for three years which started on 22.6.2009 and was to be completed on 22.6.2012. They had appeared for the entrance examination for Postgraduate courses in other disciplines for the year 2012 and were included in the rank list as rank Nos.2, 6, 8 and 28 respectively. Ext.P2 produced in the writ petition is the provisional rank list. The direction R.P.546/2012 & W.P.(C).No.15989/12 -2- sought in the writ petition was in the light of their apprehension that if the admission is made prior to 22.6.2012, they will not be able to produce the original certificates and the Transfer Certificate. In fact, for the new course they were seeking admission in the same institution, the Principal of which is the sixth respondent in the writ petition (8th respondent in the review petition) who himself is the Chairman and Convener of the Selection Committee also.
3. When W.P.(C) No.11215/2012 came up for consideration on 4.6.2012, learned Government Pleader submitted that the original certificates can be returned to the petitioners for production at the time of admission. This Court directed that the sixth respondent is free to dispense with the production of Transfer Certificate and the writ petitioners were permitted to produce the same at the time of joining the new course or at the time of commencement of the class.
4. The review petitioners are included in the rank list as rank Nos.24, 26 and 29. According to them, the writ petitioners have not completed the course and therefore are not entitled to seek for admission while undergoing another postgraduate course. It is also pointed out that on the date of interview, viz. 12.6.2012, the writ petitioners were bound to produce all R.P.546/2012 & W.P.(C).No.15989/12 -3- testimonials including Transfer Certificate. The plea therefore mainly raised is that the direction issued by this Court granting permission to produce the Transfer Certificate at the time of joining the new course, cannot be sustained.
5. In W.P.(C) No.15989/2012 the petitioners point out that their course is over on 22.6.2012 and after the judgment in W.P.(C) No.1215/2012 was rendered, even though they were eligible to be issued the Transfer Certificates, the Principal did not issue the same. They reported before the Principal on 27.6.2012 for admission to the new postgraduate course as per the memos Exts.P3 to P5. But by Ext.P8, they were informed that they cannot be admitted to the M.D.(Homoeo) course for the year 2012- 2013 for want of Transfer Certificate. When the issuance of Transfer Certificate was delayed, the petitioners therein approached the University of Kerala and by Ext.P9 letter the University directed the Principal to issue the Transfer Certificates without waiting for the completion of the examination. On 3.7.2012 they applied for Transfer Certificates and the certificates were issued. But the certificates were taken back by the Principal stating that further information is sought from the University. Again, the University clarified the position as per Ext.P11 stating that R.P.546/2012 & W.P.(C).No.15989/12 -4- Transfer Certificates can be issued to the students who have already completed M.D. and wishes to join M.D. in another speciality. The petitioners seek for a direction to admit them after quashing Ext.P8 communication.
6. Heard Shri G. Krishnakumar, learned counsel appearing for the review petitioners, Shri T.B. Hood, learned counsel appearing for the party respondents in the review petition and for the petitioners in W.P.(C) No.15989/2012 and learned Government Pleader Shri Joseph George.
7. First I will consider the plea raised by the review petitioners. Learned counsel mainly contends that the party respondents in the review petition joined M.D.(Homoeo) course in Repertory and the duration of the course including examination, is for three years and the course was to be completed only on 23.6.2012. The interview of the candidates for the new P.G. Admission for 2012 was on 12.6.2012. On that day the party respondents were undergoing M.D. course in another discipline and they are not therefore eligible for admission. Clause 13 of Ext.P1 prospectus mandates that "at the time of interview the candidate should bring their original certificates and testimonials as detailed earlier for verification along with Transfer Certificate from the Institution in which he/she R.P.546/2012 & W.P.(C).No.15989/12 -5- studied last and Migration Certificate." Therefore, the production of the original certificates and the Transfer Certificate being mandatory, the same cannot be relaxed. By relying upon the notifications of the Central Council of Homoeopathy, learned counsel Shri G. Krishnakumar points out that sub clause (2) of clause 3 of Part II under the heading "Courses of Study"
provides that "the course shall be of three years duration." Part V, clause 6 refers to conduct of examination in two parts. First part will be held six months after completion of house job of one year's duration and the second part will be held one year and six months after Part I examination. It is therefore submitted that three years duration is important while considering the question of eligibility of the party respondents. It is submitted that the Transfer Certificate can be issued only after completion of the course including the examination. Reference was made to the dictionary meaning of the word "transfer" to indicate that the same will be "to shift, to move from one place to another, to move from one job, school, institution, etc."
Reliance is placed on various judgments of this Court and Apex Court in that context.
8. Learned counsel appearing for the party respondents, Shri T.B. Hood submitted that 12.6.2012 was only the date of allotment and not of R.P.546/2012 & W.P.(C).No.15989/12 -6- admission. Going by the prospectus, the basic eligibility for admission is only that the candidate should have passed the B.H.M.S. Degree or its equivalent which the party respondents were having. Merely because they were undergoing another P.G. Course, that cannot be treated as a disqualification to apply for P.G. Course in another discipline and to participate in the entrance examination. Their applications were duly accepted and they appeared for the entrance examination and have been included in the rank list much above the review petitioners. It is submitted that the date of admission was only after the three year period, viz. after 22.6.2012, being 27.6.2012. By the time the party respondents have completed the course in M.D. Repertory. The fact that the examination is yet to be conducted will not disentitle them from getting the Transfer Certificates. It is submitted that the admission to the new course is in the same institution and therefore unlike a case where a person seeking admission is moving from one institution to another institution, herein since they are to be admitted in the very same institution much importance need not be given to the clause providing for production of Transfer Certificate. But they have procured the Transfer Certificates also after completion of the course. It is submitted that as the party respondents have completed the R.P.546/2012 & W.P.(C).No.15989/12 -7- course on 22.6.2012, the Transfer Certificates ought to have been issued prior to 27.6.2012, which is not their fault and cannot cause prejudice to them. It is pointed out that the University has clearly clarified the position in the subsequent communication, directing the Principal to issue the Transfer Certificates. It is also submitted alternatively that as the party respondents have the qualification and eligibility, at any rate, the production of testimonials and Transfer Certificates on 12.6.2012 cannot be said to be mandatory and reliance is placed on various decisions of the Apex Court in that regard.
9. In the judgment in W.P.(C) NO.11215/2012 this Court has only recorded the submission of the learned Government Pleader that the original certificates can be returned for production at the time of admission. The judgment is dated 4.6.2012. They were to complete the course by 22.6.2012 and were allowed to produce the Transfer Certificate at the time of joining the new course or at the time of commencement of the course. Herein, both are on the same date, being 27.6.2012.
10. Actually, 12.6.2012 is not the date of admission, but it was only the date of allotment which is explained by the learned counsel for the party respondents, Shri T.B. Hood as well as learned Government Pleader. R.P.546/2012 & W.P.(C).No.15989/12 -8-
11. By relying upon Chapter III of the Kerala University First Statutes, 1978, learned counsel for the party respondents submitted that actually Transfer Certificate is intended when a person is transferred to another college. Clause 1 of Chapter 3 provides as follows:
"1. Transfer Certificates:- (1) No student who has been admitted to a College or an Institution or a University Department of Study and Research shall be allowed a transfer to another College or Institution without transfer certificate in the form prescribed by the Syndicate showing:-
(a) the name of the student in full;
(b) the date of birth as entered in the admission register;
) the dates on which he was admitted to and on which he left the institution;
(d)the class in which he studied at the time of leaving the Institution;
(e) If it be the time when actual promotions take place, whether he is qualified for promotion to a higher class; and
(f) that he has paid all fees or other moneys due to that Institution in respect of the academic year in which he was enrolled."
The same envisages issuance of Transfer Certificate when the student is moving from one institution to another. Clause 2 relates to issuance of R.P.546/2012 & W.P.(C).No.15989/12 -9- Transfer Certificate after a student is registered for the University examination, whereby the details of the examination, register number and whether he has appeared for the examination, et. should be entered in the certificate. In fact, there is no prohibition under the said chapter for issuance of Transfer Certificate, even before a person appears for the examination and the same can be issued even during the continuance of the course. Herein, I need not go into such controversy, since the party respondents have completed the course on 22.6.2012 and the University has directed to issue Transfer Certificate in the light of the completion of the course itself. Mainly it can be seen that Chapter III provides for Transfer Certificate to move from one college to another or from one institution to another. Herein, the important fact is that the party respondents are only being admitted for a different postgraduate course in the same institution.
12. Shri G. Krishnakumar, learned counsel for the review petitioners points out that clause (6) of Chapter III will indicate that the Transfer Certificate can be issued only after the examination. The said clause reads as follows:
"In the case of a student who has been a candidate for a University examination, the results of which have not been published before R.P.546/2012 & W.P.(C).No.15989/12 -10- the beginning of the academic year the eleventh day after the results of that examination have been announced at the University office shall be counted for him as the first working day of the academic year so far as the grant of a transfer certificate is concerned."
It only provides for a method of reckoning a particular date after the publication of the result of the examination as the first working day of the academic year, while issuing Transfer Certificate to a student who appeared for the examination, the results of which have not been published before the beginning of the academic year. Therefore, the said clause will not help to advance the argument of the learned counsel for the review petitioners. In fact, this Court had issued the direction in the judgment only after considering the fact that the party respondents are to be admitted for the new postgraduate course in the same institution.
12. Next I will consider the arguments of the learned counsel for the review petitioners that since the party respondents were undergoing one postgraduate course, they were not entitled for admission at all. In fact, going by the clause for eligibility in Ext.P1 prospectus, such a clause is not there. Therefore, nothing prevented the party respondents from applying for the new P.G. Course even while undergoing one P.G. Course and R.P.546/2012 & W.P.(C).No.15989/12 -11- participating in the entrance examination.
13. The following decisions are relied upon by the learned counsel for the review petitioners: State of Kerala v. Dr. Riya Muhammed (ILR 2004 (2) Ker. 333), Vipin v. State of Kerala (2010 (4) KLT 380), Krishna Priya Ganguly v. University of Lucknow {(1984) 1 SCC 367}, Vennila v. Tamil Nadu Public Service Commission (2006 (3) KLT SN Page 77, C. No.109), Registrar, Osmania University, Hyd. v. D. Vinay Kumar (2001 Laws (APH)-10-69) A.P. Christian Medical Education Society v. Govt. of Andra Pradesh (AIR 1986 SC 1490), Jayakumar v. Director of Medical Education (2003 KHC 626), Principal, King George Medical College, Lucknow v. Vishan Kumar Agarwal (1984 KHC 784 = {(1984) 1 SCC 416}), Director (Studies) Dr. Ambedkar Institute of Hotel Management v. Vaibhav Singh Chauhan {(2009) 1 SCC 59}, Easwaran Namboothiri v. Principal (1988 (2) KLT 202), Varghese v. Director of Medical Education (1987 KHC 555), Dr. Muneeb UI Rehman Haroon and others v. Government of Jammu and Kashmir State (AIR 1984 SC 1585), and Mehaboob Rezool v. P.S.C. (1995 (2) KLT 718).
14. In the first of the above decisions, viz. Dr.Riya Mohammed's R.P.546/2012 & W.P.(C).No.15989/12 -12- case (ILR 2004 (2) Ker. 333), the Division Bench considered a case where clause 12 of the prospectus provided that if a candidate is not appearing for the interview, he will forfeit his chance to participate in the next stage. It appears that additional seats were provided thereafter and the learned Single Judge directed consideration of the candidature of the writ petitioners. There was a further direction also to increase the seats. This was interfered with by the Division Bench after relying upon clause 12 of the prospectus and observed that the direction issued by this Court to admit the candidates who have forfeited their chance, cannot be sustained. The said dictum has no application to the facts of this case.
15. Vipin's case (2010 (4) KLT 380) relied upon by the learned counsel for the review petitioners, is a case where only one seat was available for the particular discipline for an inservice candidate, that too in a super speciality course. The petitioner in the writ petition was first rank holder in the open merit quota. After participating in the selection process, the petitioner approached this Court seeking to challenge the clause in the prospectus earmarking one seat for inservice candidate and the Division Bench was of the view that after participating in the process of selection, he R.P.546/2012 & W.P.(C).No.15989/12 -13- cannot turn round and challenge the selection of inservice candidate, on the principle of estoppel. I am of the view that on the facts of this case, the same will not apply here.
16. Krishna Priya Ganguly's case {(1984) 1 SCC 307) laid down the principle that the High Court, under Article 226 of the Constitution of India, cannot ignore the rules framed by the Admission Committee; nor can it devise its own criteria for admission. It is a matter for decision of the academic body. It was held that the High Court can neither relax or rewrite the rules, nor grant admission to a person who is appreciably below the required merit on ground of his having a diploma. Therein, the said view was taken in para 17 of the judgment. The same was apparently in the light of the factual position therein. Herein, this Court has not relaxed the eligibility conditions in the judgment sought to be reviewed.
17. Vennila's case (2006 (3) KLT SN 77 C No.109) is relied upon to show that the prospectus is binding on a candidate as well as the State. It appears that a signed declaration was required therein and the application was declared as invalid and unauthenticated due to non signing of the declaration. The circumstances herein are totally different. R.P.546/2012 & W.P.(C).No.15989/12 -14-
18. The decision of the Andhra Pradesh High Court in D. Vinay Kumar's case (2001 Laws (APH)-10-69) is relied upon to contend that the candidates cannot pursue more than one course at any point of time. In fact, therein on the particular clauses in the prospectus such a view was taken. Apparently herein that will not apply since the respondents are not seeking to be admitted in a course simultaneously to the course they were undertaking. It is not a case of simultaneous study, as contended by the learned counsel for the review petitioners.
19. The reliance placed on the decision of the Apex Court in A.P. Christians Medical Educational Society's case (AIR 1986 SC 1490) cannot help the review petitioners. Therein, without affiliation and permission an institution was started and the students were admitted. A plea was raised for allowing the students to appear for the examination which was repelled by the Apex Court in para 10 of the judgment. Such is not the position here.
20. In Jayakumar's case (2003 KHC 626), the issue came up for consideration in the light of the Government Order dated 17.8.2001 which directed that "Lecturers in Nuclear Medicine are also eligible to be R.P.546/2012 & W.P.(C).No.15989/12 -15- considered for the M.D. General Medicine Course". The admission was for the year 2002 wherein the provision allowed the Lecturers in Nuclear Medicine only to apply for admission to M.D. Radiotherapy and not to M.D. General Medicine. The learned Single Judge directed the Government to consider whether an amendment of the prospectus for the year 2002 could be made for making eligible the Lecturers in Nuclear Medicine for admission to M.D. General Medicine. The Division Bench was of the view that such a direction cannot be issued, as the court cannot direct either amendment of the prospectus or consideration of the claim in a manner otherwise than what was provided in the prospectus. Herein, this Court has not directed any modification of the prospectus at all like the said case.
21. Principal, King George Medical College's case {(1984) 1 SCC 416} is a case where the eligibility clause in the prospectus provided for admission to M.D. Course provided that the candidate should have obtained the degree of M.B.B.S. and should have completed one year's compulsory rotating housemanship after passing of the examination. The proviso also stipulated other conditions including one as equivalent to one year's housemanship, viz. three years' work as a Medical Officer in a hospital R.P.546/2012 & W.P.(C).No.15989/12 -16- approved by the Medical Council for compulsory internship. The question was whether the said clause in the proviso has to be fulfilled by a candidate on the date on which he applied for admission or on the date of the examination. It was held that the clauses will apply as on the date on which he applied for admission. Herein, the date of admission is only on 27.6.2012, as 12.6.2012 was only for interview, viz. for allotment. Therefore, the said principle will not help the review petitioner.
22. Vaibhav Singh Chauhan's case {(2009) 1 SCC 59) is a case where a student was debarred for malpractice in the examination hall. He was disqualified for one academic session directing to get readmission. The High Court by an interim order allowed the petitioner to appear for one examination and the writ petition was finally allowed. It was confirmed in Appeal by the Division Bench. The Apex Court set aside the same holding the view that there should be purity in examinations. It was held that substitution of the arrangement cannot be a matter for the court to decide. On the facts of this case, the said dictum will not apply here.
23. In Easwaran Namboothiri's case (1988 (2) KLT 202), the petitioners who had completed the second year MBBS examination at the R.P.546/2012 & W.P.(C).No.15989/12 -17- third chance sought for consideration of their case along with the respondents for permitting them to sit for the final year MBBS examination wherein the respondents had passed the examination in the second chance. This Court refused to interfere on the plea that academic decisions should be given their due weight as there is autonomy for the University. There is no breach of such principles herein.
24. The decision of a Division Bench of this Court in Varghese's case (1987 KHC 555) was also relied upon by the learned counsel for the review petitioners. Therein, the provisions in the prospectus regarding the qualification ran counter to the provisions of the University Statutes. It was held that the Statutes will prevail. With regard to the relevant date for considering the eligibility, it was held that the date on which the candidate applied is relevant for assessing eligibility. As already pointed out, going by the prospectus herein, the party respondents are eligible for admission which cannot be disputed, as for admission to postgraduate courses, the qualification provided is only a basic B.H.M.S. degree. 12.6.2012 was the date on which the allotment process was made. It was not therefore the crucial date also. Therefore, the said judgment also cannot help the R.P.546/2012 & W.P.(C).No.15989/12 -18- contentions of the learned counsel for the review petitioners.
25. The next decision relied upon is Dr.Muneeb UI Rehman Haroon's case (AIR 1984 SC 1585). Therein, the Apex Court took the view with regard to the maintainability of a writ petition under Article 32 of the Constitution, that the petitioners failed to prove any breach of their fundamental right or malafides or arbitrariness on the part of the State Government in making admission and held that the writ petitions are not maintainable. The writ petitions were filed under Article 32 of the Constitution of India and in that context the said finding was rendered.
26. The last of the decisions relied upon by the learned counsel for the review petitioners is that of this Court in Mehaboob Razool v. Public Service Commission, (1995 (2) KLT 718). This is a case wherein a notification was issued by the Public Service Commission inviting applications for the post of Pharmacist. This Court laid down the principle that when the date of application is a fixed date, the candidates should have the qualification as on that date. Therein, the candidate obtained registration under the Pharmacy Council after the last date. The said principle cannot have any application herein.
R.P.546/2012 & W.P.(C).No.15989/12 -19-
27. Learned counsel for the party respondents relied upon the decisions of the Apex Court in Charles K. Skaria v. Dr.C. Mathew and others {(1980) 2 SCC 752}, Dr. (Mrs) Kirti Deshmankar v. Union of India and others {(1991) 1 SCC 104) and Dolly Chanda v. Chairman, JEE and others {(2005) 9 SCC 77) to contend for the position that production of a certificate wherein qualifications are there, along with the application, cannot be said as mandatory when candidates are duly qualified. In Charles K. Skaria' case (supra), the Apex Court in paragraph 20 held as follows:
"Proof of having obtained a diploma is different from the factum of having got it. Has the candidate in fact, secured a diploma before the final date of application for admission to the degree course? That is the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma, the proof thereof subserves the factum of possession of the diploma and is not an independent factor."
28. In Dr.(Mrs) Kirti Deshmankar's case {(1991) 1 SCC 104} R.P.546/2012 & W.P.(C).No.15989/12 -20- with regard to the production of a certificate of clearance, it was held that the production of the same before admission is acceptable.
29. The decision of the Apex Court in Charle's K. Skaria's case (supra) was relied upon by a later Bench in Dolly Chanda's case {(2005) 9 SCC 779} wherein the principle was explained thus:
"7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement for benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature."
R.P.546/2012 & W.P.(C).No.15989/12 -21- Herein, it can be seen that the party respondents had the eligibility to apply for the P.G. course in another discipline. Their applications were accepted and they appeared for the entrance examination and secured ranking much higher than the review petitioners. Their participation in another P.G. Course is not treated as as disqualification, in the prospectus.
30. The crucial question is whether they have completed the course. The duration of the course is three years and going by the admitted facts, as on 27.6.2012 the party respondents had completed the P.G. Course. True that examination has not been conducted. The question is whether the mere fact that the examination is not conducted should imply that they are continuing with the course, for deciding their fate. Even going by the relevant clauses of the prospectus which is produced as Annexure III along with the review petition, the duration of the course is shown as three years as per clause 19(1) including University examination. Shri Krishnakumar, learned counsel for the review petitioners therefore submitted that the non conduct of University examination will disentitle the party respondents from getting the admission. In fact, the said clause will show that the entire duration is one including University examination. Three years is the outer limit. That they have completed the course, cannot be of any doubt. The R.P.546/2012 & W.P.(C).No.15989/12 -22- fact that the University examination is not conducted, cannot therefore prejudice them. The University has also clarified by Ext.P9 produced in W.P.(C) No.15989/2012 that the Transfer Certificate can be issued after completion of the course, without waiting for the completion of the examination. The said is a decision taken by the Academic Body being the University which will prevail.
31. In the light of the above, the arguments of the learned counsel for the petitioners cannot be accepted. There is no apparent error in the judgment.
32. In W.P.(C) No.15989/2012, the petitioners were issued the admission memos by Exts.P3 to P5 when they have appeared for the allotment on 12.6.2012, with a direction to report before the Principal on 27.6.2012. As on that date they have completed the course, but the Principal did not issue the Transfer Certificates and it was informed by Ext.P8 that the College is not in a position to admit them. In fact, there was no impediment for issuing the Transfer Certificate as it is subsequently made clear by the University by Ext.P9 based on the decision of the Syndicate Standing Committee. It is mentioned in Ext.P9 that Transfer Certificates can be issued immediately after completion of the course R.P.546/2012 & W.P.(C).No.15989/12 -23- without waiting for the completion of the examination, as Transfer Certificate is required for higher education. Reliance is placed on a University Note dated 12.5.2000 wherein similar prayers have been granted to the students of Arts and Science Colleges and the decision is to make applicable the same in other affiliated colleges. Again, the Principal expressed a doubt whether M.D. (Homoeo) being not a higher course, Transfer Certificate could be issued, as is evident from Ext.P10 communication to the University which again has been clarified by the University as per Ext.P11. Ext.P11 will show that the University has clearly stated that the Transfer Certificate can be issued to the students who have already completed M.D. and wishes to join in another speciality.
33. Therefore, the competent Academic Body, namely, the University has taken a decision in favour of the petitioners. The said decision of the academic body will have to be therefore, accepted. The review petitioners, even though have been impleaded as respondents in the said writ petition, they have not challenged the decision of the University, by filing a separate writ petition. Therefore, it can be seen that Exts.P9 and P11 apply on all fours and will come to the aid of the petitioners in the writ petition. Learned Government Pleader also submitted that the stand of the Principal R.P.546/2012 & W.P.(C).No.15989/12 -24- is that the University decision will be adhered to.
34. In the light of the above, the Review Petition is dismissed. W.P. (C) No.15989/2012 is allowed. There will be a direction to the Principal of the College to admit the petitioners therein to the M.D.(Homoeo) Course in terms of the admission memos issued to them, as evidenced by Exts.P3 to P5, forthwith, as the course has already started. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) kav/