R. Gururajan, J.
1. All these petitions are taken up together for final disposal.
Petitioner-Sarfaraj Nawaz Loni is before me seeking for a writ of declaration that Rule 3(1)(d) of the Karnataka Selection of Candidates for Admission to Professional Institutions Rules, 2005 as being arbitrary and ultra vires to Articles 14 and 21 of the Constitution of India. Petitioner seeks permission to appear for counselling to be conducted by the second respondent in II-B category. Petitioner also seeks a direction to the respondents to refund or adjust the tuition fee paid by the petitioner for the academic year 2004-05.
1.1 Petitioner completed his Pre-University examination with 69.33%. He appeared for the GET held in May 2004. He was selected and he was suceessful. He selected a seat for I year MBBS Course in JJM Medical College, Davanagere through counselling held by the second respondent on 13-9-2004 in IIBG/K category with the ranking of 4872. Petitioner joined the college. However, on 30-9-2004 he informed the college that since the fee had been fixed at Rs. 1,72,000/- per year, it was financially not possible for him to meet the same in addition to other miscellaneous fee, therefore he surrendered the seat.
1.2 Petitioner once again appeared for the GET held on 3-5-2005 and 4-5-2005 and has been allotted medical rank of 3311. Petitioner submits that on account of the restraint placed on candidates who had obtained a seat in the previous year in any discipline not being eligible for seat selection in the same discipline, his case was not considered. He is therefore before this Court challenging the Rules with permission in terms of the prayer.
1.3 Petitioner's father has also filed an affidavit on 8-7-2005 stating that his son (petitioner) appeared for GET Counselling on 30-7-2005 and was selected in respect of MBBS Course. The fee paid for Rs. 1,72,000/-to the second respondent. He had borrowed certain sums of money from KGID and also from Teacher's Co-operative Society, Bagalkote and hand loans from relations for paying up the aforesaid fee of Rs. 1,72,000/-. Later he realised that it was not possible for him to mobilise funds to pay the fees for the rest of the MBBS Course and therefore he advised his son to surrender his seat and accordingly on 30-9-2004 the seat was surrendered. He has further stated that the college did not return the admission order and therefore he could not produce the same before the GET Cell to seek refund. He wants refund of the fee paid to GET in 2004 or in alternative to adjust the tuition fee paid in the event of his son getting a seat in the ensuing counselling.
2. Petitioners in these petitions are seeking for a writ to strike down Rule 3(1)(d) of the Rules in addition to a mandamus to permit the petitioner to participate in the Counselling.
2.1 Nusrath Fatima, petitioner 1 was placed at the ranking 3753 in the medical discipline. She appeared for counselling and was given admission to MBBS in category IG at Yenepoya Medical College, Mangalore in the category of Government Payment Seats with annual fee of Rs. 1,72,000/-. Petitioner's father was a Kasai by profession and they are economically weak. Petitioner's parents have nine children including the petitioner. With their meager income it is not possible for them to pay such high fees. Petitioner in those circumstances did not joint the college and instead chose to appear for the subsequent GET examination held in 2005. She was successful and she was placed at 1501 medical ranking.
3. Petitioner 2 secured 86.5% in PU II Year Science and she appeared the GET 2004 and got 3785 medical ranking. She comes in Category I (I-G). She was allotted a medical seat in the category of Government Payment Seats with annual fee of Rs. 1,72,000/- and admission was given at A.J. Institute of Medical Sciences, Mangalore. Her father was a Government servant working as Sub-treasury Officer at Bhalki in Bidar District. Her parents have four children and her father is getting a total emolument of about Rs. 1,55,000/- p.a. Her parents expressed their inability to provide her higher education because of their financial difficulties. It was in those circumstances the second petitioner also did not join the college and instead chose to appear for the GET 2005. In GET 2005 she got the medical ranking of 2029.
4. Second petitioner's father's elder sister's daughter is working as Nurse at Children and Maternity Hospital at Madeena since 1998. She had transferred her savings to her account in India. A Demand Draft for Rs. 1,72,000/- was drawn from her said account on 12-7-2004 for the purpose of paying the fee of the second petitioner to the GET. Petitioner's mother is a teacher in the Government Primary School at Rao Talim, Bidar. Petitioner 2 was allotted a seat in the A.J. Institute of Medical Sciences, Mangalore. Petitioner went to the college along with her father on 27-9-2004 and took admission. In the meanwhile, two elderly persons met them in the college premises and told that there is ragging in the college and leaving the girl in the hostel is not secure and that there is no safety for the girl students. In view of the heavy burden of recurring expenses of annual fee and the incidental expenses relating to it for completing the course and on being apprehensive of security threat, petitioner 2 could not get confidence to continue the study there. She requested for return of original certificate and marks card. The College authorities after obtaining a letter from her to that effect, returned the originals.
5. Petitioner 1 also states that she was allotted a seat at Yenepoya Medical College, Mangalore. She went to the college along with her father and she says that they were threatened by some persons in the college campus and were told that the girl will not be safe and continuation of her study in the college is not advisable. In view of the heavy burden of recurring expenses of annual fee and the incidental expenses relating to it for completing the course and on being apprehensive of security threat, petitioner 1 and her father thought over and decided not to continue the study and repeat the examination for better performance. When requested for return of the originals, the college authorities took the letter and returned the originals.
6. Petitioners have also provided the other details with regard to counselling in the case on hand.
7. Both the petitioners state that now they are unable to get a medical seat despite their ranking in the light of Rule 3(1)(d) of the Rules. They want the rule to be struck down as arbitrary in the matter, additional statement of facts was filed by the petitioners.
8. Counter statement is filed by the second respondent. Second respondent states that the petitioners have suppressed the material facts. The first petitioner has taken the GET 2004 examination with GET No. HA574. Based on her performance, she was assigned medical rank 3753. She had claimed IG reserved category. The said petitioner on her free will and volition appeared in the seat selection and selected medical seat in Yenepoya Medical College, Mangalore. The said petitioner had deposited the fee and copies of testimonials and obtained the admission order 6718, dated 12-9-2004. The said petitioner has not surrendered the said admission order and without cancelling the seat at GET Cell by adopting scheme and design to have illegal gain has surrendered the seat to the said college which came to the notice of this respondent after the admission process of 2004 was completed and during the course of verification of the records of the college.
9. The second petitioner had appeared in GET 2004 with GET No. HC 379 and was allotted medical rank 3789. She had claimed allotment to IG category - a reserved category, appeared in the seat selection held on 26-9-2004 and selected a seat for joining MBBS at AJIMS, Mangalore. The said petitioner has not surrendered the said admission order and without cancelling the seat at GET Cell has surrendered the seat to the said college, by adopting scheme and design to have illegal gain.
10. Both the petitioners having obtained the admission orders at Annexures-B1 and D1 have misused the same and have got illegal benefit. The petitioners by their acts, deeds, things have deprived the next meritorious reserved category (IG) GET candidates and join the course. The said medical seats were selected by the petitioners knowing the same to be payment category seats and on their free will and volition. The said admission orders which were obtained by the petitioners from the GET Cell have been made use by them for having illegal benefit, which is apparent, as the petitioners did not surrender the same, did not cancel the admission or made any claim to refund of fee from this respondent, which event would have enabled this respondent to allot the surrendered/cancelled seats to other eligible meritorious candidates of IG reserved category only. The petitioners have wilfully violated the 2004 Rules. The petitioners have made unlawful gain in the process. The petitioners are the beneficiaries of the fraud, scheme and design that has been adopted to obtain medical admission orders of reserved category candidates, which, were in great demand and have surrendered the said admissions/seats to the colleges, by entering into understanding contrary to Rules.
11. It is submitted that in year 2004-05 about 67 candidates who had taken medical seats from GET Cell, have misused the same have surrendered the seats to the college management, have enabled/allowed the management to fill up the seats de hors merits and enrich themselves at the cost and chances of meritorious candidates. There was scheme and design adopted by the candidates to obtain the medical admissions from GET Cell, misuse the admission orders for having illegal benefit. A racket was found, which could be seen from the sinister designs modus operandi adopted by the petitioners and others similarly placed 65 other candidates.
12. Taking into account the law laid down by the Supreme Court, the first respondent while issuing the 2005 Rules, has introduced proviso to Clause (d) of Sub-rule (1) of Rule 3, to prevent misuse and check the illegal activities of virtual marketing of the seats or admission orders which were come to be noticed. The said proviso was introduced to prevent the activities of the above type, which were illegally carried on by the nexus between the candidates and the vested interests. It was introduced in public interest to ensure that the candidates who have already secured admission should not abandon the studies after commencement of the course, in which the candidates had taken the admission and farther such act would deprive another eligible candidates from seeking admission to the course.
13. The Rules at Annexure-F was published prior to the conducting of GET 2005. The candidates were made known of the proviso/restriction in the brochure issued along with GET application. No loss or prejudice will occasion to any candidate by the impugned proviso. The case of the petitioners is against the well-settled principles of law laid down by the Supreme Court in the case.
14. These petitions were taken up for hearing together.
15. Smt. B.V. Nagarathnamma, learned Counsel for the petitioner invites my attention to the material facts to show that the amended provision is arbitrary and unreasonable. She says that there is no nexus sought to be achieved in terms of the provisions of the Rules. She says that the petitioner could not continue her studies due to higher fee structure and therefore she surrendered the seat with the fond hope of getting into medical education next year. Learned Counsel says that the present facts and circumstances warrant interference by this Court.
16. Sri Muddappa, learned Counsel would invite my attention to the Karnataka Selection of Candidates for Admission to Professional Colleges to say that the present rules provide a restriction requiring reconsideration. Learned Counsel says that in terms of 2003 Rules, there was no such restriction for second admission. He says that 2000 Rules were framed after seeking objection in terms of the preamble to the Rules. Whereas, the amended rules in terms of the notification dated 26-4-2005 was issued without seeking for objection in the matter. Therefore he says that the said rule suffers from procedural irregularity. Even otherwise he would say that a right granted to students is taken away by the 2005 amended rules. Therefore, he says that the matter requires reconsideration.
17. With regard to the conduct he would say that on coming to know of the ragging in the college, the students naturally backed out from getting admission. Therefore he says that that cannot be a reason for denial of admission.
18. Both the learned Counsels say that some mischief somewhere could not be a ground for restricting subsequent admission in terms of 2005 amended rules. They also explain the merits of the matter.
19. Per contra, Sri Venugopal Gowda, learned Counsel would say that the facts of the case do not warrant any interference. Learned Counsel says that the students were made aware in terms of the brochure that those who have obtained a seat earlier are not entitled for consideration in the year 2005. He would elaborately argue that there are several instances of misuse or abuse of the reservation provided in the larger interest by the State agencies. Learned Counsel complains that the provisional admission letter is virtually treated as currency note and mischief is played and that mischief is sought to be remedied by the amended rule. Even otherwise, learned Counsel on merits would say that such rejection cannot be termed as unreasonable in terms of the various Court rulings. He says that a serious view is to be taken by this Court and no interference is called for in these cases.
20. After hearing, I have carefully perused the material on record.
21. Petitioners are before me challenging Rule 3(1)(d) of the Karnataka Selection of Candidates for Admission to Professional Institutions Rules, 2005, insofar as ineligibility in the light of obtaining a seat in the previous year.
22. It is seen from the material on record that 2003 rules provide for academic eligibility. It only ruled that those who have completed 17 years of age are entitled for admission. Rules of 2004 in terms of Rule 3 provides for academic eligibility. Rule 16 only provides for forfeiture of the entire money to be made over in certain circumstances. In 2005, the State Government in its wisdom introduced a provision to Rule 3(1)(d) and the said proviso reads as under:
'Provided that no candidate who has obtained a seat in any discipline through the GET Cell in any previous year shall be eligible to appear for the common entrance test conducted by the GET Cell for selection of a seat in the same discipline'.
23. Let me see as to whether this proviso is arbitrary or unreasonable as sought to be made out by the parties.
24. Material on record would reveal that the State Government in its wisdom has provided reservation to certain category of people with a view to uplift them by way of specialised policy of the Government.
25. Admitted facts would reveal that these petitioners were provided reserved seats by GET. These petitioners have not surrendered their seats to the GET in terms of their own admission.
26. Petitioners subsequently have appeared in the GET and they have obtained certain ranking in terms of averments. Now in terms of Rule 3(1)(d), petitioners are not eligible to appear in the common entrance conducted by the GET in the same discipline. Respondents have denied them selection in the light of their obtaining a seat in the previous year. This is questioned in this petition by the petitioners.
27. Petitioners first argument is that the rules have been brought into force without previous publication as has been done in the earlier orders. They complain that the students were handicapped on account of non-publication of the rules as required in terms of the law governing such rules.
28. Let me see as to whether this objection is sustainable or not.
29. Sri Venugopal Gowda, learned Counsel invites my attention to [Section 14 of the Karnataka Education Act, 1983] Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984. The said Act did not provide for any previous publication in the matter of making rules in terms of the statute. Therefore, the argument with regard to non-publication of draft rules has to be rejected in the absence of any statutory requirement under the Act.
30. The second argument advanced by the petitioners is that the impugned provision is arbitrary and illegal inasmuch as it provides an embargo in the matter of subsequent selection on the ground of previous selection. Petitioner's argue that it is in violation of Articles 14 and 21 of the Constitution of India.
31. It is no doubt true that the said provision has been introduced in the year 2005. The reasons provided are that several mal-practices were adopted by the students in collusion with the institution by way of fraud and by way of obtaining monetary consideration in terms of the averments. It is also stated in the objection statement that the said rules are brought into force in public interest. It is not as though the said prohibition is brought into force for the first time in the country. In the State of Haryana, there existed a clause providing for a similar ineligibility for admission. The said clause 18 was the subject-matter of decision of the Supreme Court in Mabel v. State of Haryana and Ors., : AIR2002SC2773 . The facts in the said case would show that the petitioner in the said case took admission in BDS for the academic year 2000-01, but subsequently withdrawn from the course and the appeared in entrance exam for MBBS/BDS course for the academic year 2001-02. According to her she was entitled to admission in MBBS course. Clause 18 of the Information Brochure of Kurukshetra University, Haryana for MBBS/BDS entrance examination, came in her way. She filed a writ petition. Ultimately, the matter reached the Supreme Court. The Supreme Court noticed this clause and ruled as under:
'4. It will be useful to refer to clause 18 which reads as under:
'18. The candidates already admitted in any medical/dental colleges will not be considered eligible for admission to the course'.
A plain reading of the aforesaid clause shows that a candidate who was already admitted in a medical or dental college would be ineligible for admission in the other course. The said clause at times will operate harshly as in the case of the petitioner but it is meant to ensure that a candidate who has already secured admission should not abandon the studies after the commencement of that course to seek admission in another course which is in public interest, for otherwise, it would result in the wastage of the seat in the course in which he has taken admission, and further, such a change would deprive another eligible candidate from seeking admission to the other course. Obviously, the intention of the concerned authority in framing clause 18 appears to be to ensure that a candidate who has already secured admission with his free will in any course (MBBS or BDS) should complete that course and should not change his mind in midstream. It, therefore, follows that the bar is intended to be operative during the period of the course in which a candidate has taken admission. After completing that course or in the event of abandoning the course and not studying the normal period 4/5 years, as the case may be the candidate would become eligible after the end of such period of the course to seek admission in the course of his choice provided other conditions of admission are satisfied. In other words, the bar under Clause 18 in this case will cease after the BDS Course for the academic year 2000-01, in which the petitioner has taken admission comes to an end after 5 years. In the light of the above observations the petitioner will be free in seek admission in the course of her choice after the end of the BDS course which commenced in 2000-01'.
32. Similarly, in Rajiv Mittal v. Maharshi Dayanand University and Ors., : AIR1998SC680 . Apex Court noticed a somewhat same or similar ineligibility clause in Note No. 2 in the information brochure of the Maharshi Dayanand University, Rohtak which read as under:
'A candidate who applies either for reserved category or for both reserved and open will be considered first in open category. In case he/she is not selected in open category, he/she will be considered for reserved category'.
This note was noticed and thereafter the Supreme Court upheld the said note.
33. In Arti K. Chhabra and Ors. v. Union of India and Ors., : AIR1994SC1506 , the Supreme Court has noticed a similar ineligibility in the matter of IAS and IPS. The Supreme Court considered the proviso to Rule 4 of the Rules. The rule provided that a candidate who accepts allocation to a service and is appointed to a service shall not be eligible to appear again in the Civil Services Examination unless he has first resigned from the services. Ultimately, in paras 7 and 8 as under:
'7. The attack against the second proviso to Rule 17 of the Civil Services Examination Rules, 1990 is based, as we have pointed out above, on two grounds. The first is that the restriction on the horizontal mobility from one service of Group 'A' to another service in the said Group, by itself is unreasonable and arbitrary. Secondly, while it permits those who are selected in any service in Group 'A' are prevented from doing so. Hence, there is a discrimination between the candidates selected for IPS and those selected for any of the Group 'A' Services.
8. We are not impressed by either of the said contentions. As regards the first contention, the restriction is eminently justified since, as has been pointed out on behalf of the respondents, all services in Group 'A' stand at par with each other. Hence, there is no question of bettering prospects or seeking an upward mobility when a candidate wants to move from one service in Group 'A' to another service in that group. Further, if those who are appointed to any of the Group 'A' services which are as many as 45, are allowed the mobility, a large number of posts would remain unfilled at any particular point of time resulting in a chaos in the administration. The contention that this will be the case even when the candidates appear for the next examination for upward mobility loses sight of the fact that the posts in IAS, IFS and IPS are limited in number compared to those in Group 'A' services and those selected for the IAS, IFS and IPS are few. The dislocation on that account is thus marginal if any. What is more, there is no absolute restriction on a candidate selected to any of the services in Group 'A' from moving to any other service in the same group the only condition is that if he does so, he has to resign from that service before he appears in the next examination. For these reasons we are of the view that the restriction placed on the said mobility cannot be said to be either unreasonable or arbitrary'.
34. A Full Bench of the Delhi High Court in Dr. Sandhya Kabra and Ors. v. University of Delhi, AIR 1993 Del. 40, also considered the same question and ruled in paras 37 and 38 as under:
'38. As already noted, the Supreme Court had laid down, in clear and categorical terms, that the course of study should commence, after all the admissions have been completed, on 2nd May, 1992. The petitioner has now been in this course for over one year. Even at the time when the writ petition was filed on 28th April, 1992, more than eight months had elapsed after her joining the course of M.D. (Microbiology). If the petitioner was to be allowed to change the course, all the expenses and time which had been spent in the petitioner pursuing the course of M.D. (Microbiology) would be lost. We are given to understand that it costs the exchequer about 5 lacs of rupees per annum towards the post-graduate education of a student. If the petitioner is allowed to change the course, all this expense which had been incurred would be lost for no valid reason. Secondly, if the petitioner was to be allowed a change from the course of M.D. (Microbiology) that would, unnecessarily, result in the starting of a chain reaction. The seat of M.D. (Microbiology) for the year 1991 would stand vacated and that in turn will have to be allotted to a candidate who had opted for M.D. (Microbiology) but had not obtained it because of the lower position in the merit list. If all these resultant vacancies had to be filled, it would be impossible for a course to commence'.
The Court has further ruled in para 44 as under:
'One other contention raised by Sh. Mariaputham, on behalf of the respondent, was that the petitioner in any case cannot be allowed change of subject for the simple reason that there are candidates in the merit list who are senior or her and had also opted for the same subjects namely, M.D. (Paediatrics) and M.D. (Medicine). In this connection, the learned Counsel relied upon the decision of the Supreme Court in the case of State of Kerala v. T.P. Roshana and Ors., AIR 1979 SC 765 : (1979)1 SCC 572. This case was concerned with admission to Medical Colleges and at page 589 of SCC, it was observed by the Supreme Court that the selection of the students to whom relief was to be given was not be confined to those who have moved the Supreme Court or the High Court because 'The measure is academic excellence, not litigative persistence. It will be thrown open to the first 30, strictly according to merit measured by marks secured'.
35. From these judgments what is clear to this Court is that such ineligibility clause cannot be faulted as discriminatory or unreasonableness. There is a purpose behind the proviso. Petitioners admittedly have obtained a reserve seat in terms of the earlier selection. On account of the earlier selection one reserve category student was deprived of a seat and instead that seat had become a business transaction resulting in another non-reserved category getting admission by way of management seat. The said mischief is remedied by the amended proviso. Petitioners with their eyes wide open offered selection and later withdrew from the same. They cannot be considered for the second time to the detriment of other students who would have been considered but for the selection of the petitioners. In these circumstances, with a view to arrest the mischief and in the light of the object of public policy, the State Government has chosen to introduce a proviso. Such proviso cannot be termed as either unreasonable or arbitrary. Such clauses have been upheld by Courts of law and in these circumstances, I am unable to accept the contention that these clauses run counter to Articles 14 and 21 of the Constitution of India. Ultimately, these rules are introduced in the larger interest of providing protection to a rightful reserved category for the purpose of upliftment of a section of the people.
36. In W.P. No. 15792 of 2005, a request is made for refund of Rs. 1,72,000/- made over to GET. Learned Counsel also seeks for a lenient view in the matter of refund taking into consideration the writ averments. Sri Venugopal Gowda, learned Counsel strongly opposes the prayer. Let me see the rules governing refund. Admittedly, in the case on hand, petitioners have not chosen to surrender the admission to GET instead they have chosen to surrender the same to the college. (Rule 16 of the Rules deal with refund]. Unless the candidate surrenders the seat of GET refund is not possible. In these circumstances, the plea of refund is rejected.
37. An argument is advanced that the Discipline consists of MBBS/BDS etc. The argument is that there is a blanket prohibition in the proviso. Respondents have clarified that 'discipline' would mean the same subject which has been provided in the previous year. Hence it is unnecessary to consider the plea in the light of clear clarification by respondents.
38. Before concluding, this Court is greatly disturbed to see the event that has taken place in these cases. The Government as a policy has chosen to provide reserved seats to these petitioners to uplift a section of society. After selection, the petitioners have not chosen to surrender the seat to the GET instead, they have chosen to surrender the same to the college before 30-9-2004, the last date for admission. In W.P. No. 16314 of 2005, it is seen that the petitioner has not even chosen to seek any refund or correspond with GET in the matter.
39. I must also notice the three original documents made available to me by the respondent. It is seen from these documents that the respondent not only in the procedure but also in the declaratory form have chosen to make it very clear that the candidates who have selected a seat in any discipline during the previous years through the GET Cell, will not be eligible for selection of a seat in the same discipline from this year. In the printed pro forma submitted by Sarfaraj Nawaz Loni, column (24) is left blank. In the case of the other two petitioners the same has been filled up but the handwriting seems to be not of the candidates but somebody else, prima facie. A doubt is created in the mind of the Court in the light of the allegations made by the contesting respondent in the matter of selling the admission for money consideration. It is argued before me that these admission tickets are virtually treated as currency notes or negotiable instruments for the purpose of money transaction. It is not enough if the Government stops with amending the rules to arrest this malpractice in terms of the submission made by the contesting respondent. But the Government has to take serious view of the matter so that larger interest of reserved category is protected. In these circumstances, a direction is issued to the respondent to have a through enquiry in the matter to arrest this mischievous tendency. Respondents if need be refer all these cases either to CBI or CID in their wisdom and thereafter proceed against the petitioners and against those who are directly or indirectly responsible for any illegal transaction in terms of the averments made in the objection statement, in a manner known to law and in accordance with law. This in my view would bring some discipline and it is in the interest of the policy of the State in protecting the genuine reserved section of the society.
40. In the result, these petitions are rejected. Parties are directed to bear their respective costs.