Abhaya P. and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **WEDNESDAY, THE 29TH DAY OF FEBRUARY 2012/10TH PHALGUNA 1933** **WP(C).No. 32554 of 2006 (A) -----------------------------------** ## **PETITIONER(S):** ## **--------------------** **1. ABHAYA P., D/O.K.PRASANNA RAJAN, GANESH, MAYYANAD, KOLLAM.** **2. MITHRA SARA JOHN,D/O.DR.SVERUP JOHN,MITHRAPURAM** - **BUNGALOW,KARUVATTA, ADOOR P.O., PATHANAMTHITTA.** - **3. MAREEN BENJAMIN, D/O.BENJAMIN GEORGE, SHALOM HOUSE, CHALAKUNNU, KOTTAYAM.(DELETED)** - **DELETED AS PER THE ORDER DATED 21/10/2011 IN I.A.16488/11** **4. ANOOP JOY, S/O.JOY POTTAMPLACKAL, PULLIKKAL P.O., KANNUR DISTRICT.** **5. DEEPTHI BHASKAR,D/O.S.BHASKARAN PILLAI, LAKSHMI NIVAS, EDAPPALLY, KOCHI.** **6. GOKULAKRISHNAN K.,S/O.N.KANNAN, 6/498, "KRISHNAN'S NEST", AMBIKAPURAM, PALAKKAD.** **7. RENJITH VISWANATH,S/O.VISWANATHAN, 'SURAG', SANHOSH NAGAR, MANNUTHY P.O., THRISSUR - 680 651.** **8. JISHA P.V., D/O.P.V.GOVINDAN, VAISHNAVAM, HARIPURAM P.O., ANANDASHRAM, VIA KASARGOD.** **9. RAJWA RAHMAN, D/O.ABDUL RAHMAN, K.K.HOUSE, PATTIKKAD P.O., MALAPPURAM.** **10. LUBNA VAYAL PEEDEYAKKAL,D/O.ABOOBACKER, T.K.HOUSE, VALLIKKUMMU P.O., K.NAGARAM, VIA MALAPPURAM.** **11. REMYA RAICHEL GEORGE, D/O.M.T.GEORGE, PALLIVATHUKKAL, SHALOM THIRUMOAPPURAM P.O., THIRUVALLA.** **svs** **..........2/-....** **...2...** ## **WPC. NO.32554/2006** **12. SHAHIDA M., D/O.HAMZA MOOCHIKKAL, MOOCHIKKAL HOUSE, KAINIKKARA, PALLISSERY P.O., TIRUR.** **13. K.C.SAJITHA, D/O.K.C.MOHAMMED, KUTHIREDATH CHELYIL NALPPUZHA P.O., SULTHANBATHERY, WYNAD.** **14. ASHA ANNA JOSEPH, D/O.JOSEPH ZACHARIAS, MUNDAKKAL HOUSE, RAMAPURAM BAZAR P.O., KOTTAYAM.** **15. THASNIM ASHRAF,D/O.ASHRAF IKKAPADATH, C/O.LATE MUHAMMAD HAJI, ALLIYIL HOUSE, EDAKAZHIYOOR, V CHAVAKKAD, THRISSUR DISTRICT.** **16. JUNAID HUSSAIN, S/O.MUHAMMED ABDUL BASHEER A, ARAKKAL HOUSE, KOLATHARA P.O., KOZHIKODE.** **17. AJMAL N.K., S/O.ABDULLA N.K., M.J.MAHAL, KADAVATHUR P.O., KANNUR.** **18. RAJI V.,D/O.S.VENKITACHALAM, HOUSE NO.26/252, BEHIND AZAD WATER TANK, EROOR SOUTH P.O., TRIPUNITHURA.** **BY ADVS.SRI.SAJEEV KUMAR K.GOPAL SRI.P.CHANDRASEKHAR SRI.RAJESH NAIR** **SRI.BIJU HARIHARAN** **RESPONDENT(S):** - **--------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM.** **2. THE CONTROLLER OF EXAMINATIONS,DEPARTMENT OF** - **EXAMINATIONS,GOVERNMENT OF KERALA, TRIVANDRUM.** **3. CO-OPERATIVE ACADEMY OF MEDICALINSTITUTION (KERALA), REPRESENTED BY ITS CHIEF EXECUTIVE AND DIRECTOR, HMT COLONY P.O., KALAMASSERY P.O., KOCHI.** **4. THE PRINCIPAL, COCHIN CO-OPERATIVE MEDICAL COLLEGE HMT COLONY P.O., KALAMASSERY, KOCHI.** **R1 & R2 BY GOVT. PLEADER SRI. JOSEPH GEORGE** **R3 & R4 BY ADVS. SRI.THOMAS ABRAHAM,SC,CO.OP ACADEMY-PRO SRI.M.K.DAMODARAN (SR.) SRI.C.UNNIKRISHNAN,SC,CO-OP ACADEMY OF R4 BY SRI.MILLU DANDAPANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-02-2012, ALONG WITH WPC. 973/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **W.P.(C). NO. 32554/2006** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE MEMORANDUM OF ASSOCIATION OF THE COOPERATIVE ACADEMY OF PROFESSIONAL EDUCATION (KERALA).** - **P2: COPY OF THE RULES OF THE CO-OPERATIVE ACADEMY OF PROFESSIONAL EDUCATION (KERALA).** - **P3: COPY OF THE RECEIPT DATED 29/09/2006 ISSUED BY THE CANARA BANK, THRIPUNITHURA BRANCH, TO THE 14TH PETITIONER.** - **P4: COPY OF THE RELEVANT PORTION OF THE PROSPECTUS ALONG WITH THE FRONT PAGES OF THE PROSPECTUS ISSUED BY 2ND RESPONDENT FOR THE YEAR 2006 - 2007.** - **P5: COPY OF THIS JUDGMENT DATED 25/08/2006 IN C.A. NO.3735/2006 OF THE HONOURABLE SUPREME COURT.** - **P6: COPY OF G.O.(MS)NO.110/06/H.EDN. DATED 11/09/2006 OF THE 1[ST] RESPONDENT.** - **P7: COPY OF THE SAID PRESS RELEASE NO.C.E.E./3939/2005/T.A.1 DATED 17/09/2006 ISSUED BY THE 2ND RESPONDENT.** - **P8: COPY OF THE ORDER G.O.(P) NO.120/06/H.EDN. DATED 19/09/2006 ISSUED BY THE HIGHER EDUCATION (G) DEPARTMENT, GO GOVERNMENT OF KERALA.** - **P9: COPY OF THE REPLY NO.L.DIS.02/10/2009 DATED 12/08/2009.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE.** **svs** **S. SIRI JAGAN, J. ------------------------------------------------WP(C) NOS. 32554/2006 & 973/2010 ------------------------------------------------Dated this the 29[th] day of February, 2012** ## **J U D G M E N T** Petitioners, who are still in the party array in these two writ petitions, are students of MBBS course in the Cochin Cooperative Medical College, Kochi. They got admission in the 35% quota prescribed by the Government in the 4[th] respondent's college for the year 2006-2007. The prospectus for admission to that years was Ext.P4, which contained a clause regarding the fees payable for the course, namely, Class 12.1 wherein it has been stated that the fees will be that specified under the Kerala Self Financing Professional Colleges (Prohibition of Capitation Fees & Procedure for Admission & Fixation of Fees) Act, 2004. Justice K.T. Thomas Committee appointed by the Supreme Court fixed the fees for self financing colleges under the said Act, which was `1,13,000/- (Rupees one lakh thirteen thousand only) per year. But the respondents 3 WP(C) NOS. 32554/2006 & 973/2010 **==> picture [20 x 8] intentionally omitted <==** and 4 insisted on the petitioners paying `2,13,000/- (Rupees two lakhs thirteen thousand only), going by Ext.P8 Government Order which stipulated that in Cochin Cooperative Medical College, 35% of the seats for MBBS will be filled up by the CEE as per 2006 Act, with 50% free ship seats and 35% seats with fee of Rs.2.13 lakhs per year. According to the petitioners, this is against the Act itself. When the Act prescribes that the fees shall be that fixed by the Committee appointed under the 2004 Act and as the Committee has already fixed `1,13,000/- (Rupees one lakh thirteen thousand only) as the fees payable to the Government, a higher fees cannot be fixed by a Government Order, is the contention raised. It is also submitted that in the decision of **Lisie Medical & Educational Institutions v. State of Kerala (2007 (1) KLT 409),** the said position was reasserted and by the interim order in that case, it has been stated that for the year 2006-2007, the fee to be charged and the quota of seats would be the same as were WP(C) NOS. 32554/2006 & 973/2010 **==> picture [20 x 8] intentionally omitted <==** in the previous academic year 2005-2006. Petitioners, submit that for the year 2005-2006, the fees fixed by Justice K.T. Thomas Committee was `1,13,000/- (Rupees one lakh thirteen thousand only), which must be followed for 20062007 as well. Petitioners, therefore, seek the following reliefs. **“A. To declare that the respondents are not entitled to charge and recover from the Petitioners' fee from MBBS course in Cooperative Medical College, Cochin, owned by the 3[rd] Respondent, except at such rate as the fee fixed by the Government for similar course in Government Medical Colleges.** **B. issue a writ of mandamus or any other writ, direction or order directing the respondents to refund the excess fee collected from the petitioner, forthwith;** **C. issue a writ of mandamus or any other writ order or direction directing the Respondents not to charge, levy or collect from the petitioners' fee as per Exhibit P7 circular of the 2[nd] Respondent.** **D. Issue such other writs, orders or directions which this Hon'ble Court deems fit to do so under the facts and circumstances of this case.** **E. call for the records leading to Ext.P8 and to issue a writ of certiorari or any other writ, direction or order quashing Ext.P8 in as much as it authorizes charging of Rs.2,13,000/- by the CMC.”** 2. The 1[st] respondent, State of Kerala, has filed a statement dated 27.08.2009 in this writ petition. In paragraph 4 and 5 of the same it is stated thus; WP(C) NOS. 32554/2006 & 973/2010 ..4.. **“4. Exhibit P8 Government Order inter alia provided that fee for 35% of seats in Co-operative Medical College, Cochin would be Rs.2.13 lakhs per year. Petitioners got admission under the 35% quota, for which the fee as per Exhibit P8 Government Order is Rs.2.13 lakhs per year. According to the petitioners, the fee charged from the students is against the provisions of Act 19/06. It is further submitted by the petitioners that amount of Rs.2,13,000/- collected from the petitioners is in excess of fee for MBBS Course fixed by the Committee constituted under the said Act.** **5. It is submitted that the Government have now moved the Committee constituted under Act 19/06 seeking ratification of the action of the Government in having fixed the fee for 35% management seats as per Exhibit P8 Government Order. This is submitted for the kind consideration of the Court.”** Going by the same, the Government was also satisfied that they could not validly prescribe Rs.2.13 lakhs as the fees payable by the petitioners and that is why they approached the fee Committee for ratification of the action of the Government. 3. Insofar the prospectus prescribed that the fees should be as fixed under the 2004 Act, which has been fixed by the Justice K.T. Thomas Committee as `1,13,000/(Rupees one lakh thirteen thousand only) that fees alone can be collected from the petitioners. In fact, the WP(C) NOS. 32554/2006 & 973/2010 **==> picture [20 x 8] intentionally omitted <==** petitioners contend that for subsequent batch, only `1,30,000/- (Rupees one lakh thirty thousand only) is collected as fee, which is not disputed by anybody. 6. In the above circumstances, I am satisfied that the petitioners are entitled to the reliefs prayed for. Accordingly it is declared that the petitioners are liable to pay fees for the course undertaken by them only at the rate of `1,13,000/- (Rupees one lakh thirteen thousand only) per year. As such, any amount paid in excess of that amount is liable to be refunded to the petitioners by the 3[rd] and 4[th] respondents. This shall be done as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. I make it clear that in view of the above finding, if the bank guarantee furnished by the petitioner as per the interim order passed by this Court is in excess of fees at the rate of `1,13,000/- (Rupees one lakh thirteen thousand only), the same would stand WP(C) NOS. 32554/2006 & 973/2010 ..6.. cancelled and shall be returned to the petitioners immediately. The writ petition is allowed as above. Sd/- **S. SIRI JAGAN, JUDGE** bka/- //True copy// PA to Judge