Admission Supervisory Committee (ASC) and Admission & Fee Regulatory Committee for Medical Education, Kerala v. Deepthi T S and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939 ## **RP.No. 1114 of 2017 IN WPC. 31814/2017** AGAINST THE JUDGMENT IN WP(C) 31814/2017 of HIGH COURT OF KERALA DATED 25-10-2017 ## **REVIEW PETITIONER(S)/RESPONDENTS NO.3 & 5** - 1 ADMISSION SUPERVISORY COMMITTEE REPRESENTED BY ITS MANAGER M.P.APPAN ROAD, VAZHUTHACADU, THIRUVANANTHAPURAM.-695014 2 THE ADMISSION & FEE REGULATORY COMMITTEE FOR MEDICAL EDUCATION KERALA, REPRESENTED BY MANAGER M.P.APPAN ROAD, VAZHUTHACADU, THIRUVANANTHAPURAM-695014 BY ADV.SMT.MARY BENJEMIN RESPONDENT(S)/PETITIONERS & RESPONDENTS 1,2 & 4: 1. DEEPTHI T S D/O SABU T.R.PARAKKADAVIL HOUSE4, IRIMPANAM P.O, THRIPUNITHURA, ERNAKULAM -682309. 2. ARUNIMA P D/O PRABHAKUMAR, LAKSHMI VILASOM, THADIYOOR P.O, RANNI, PATHANAMTHITTA -689545 3. ALEENA ANN GEORGE D/O N.S ANIYANKUNJU, LOVE DALE, KALLUKUZHI JUNCTION, ADOOR, KADAMPANA, PATHANAMTHITTA DISTRICT-691552. 4. ADITHYA P D/O PREMLAL, VARUVIL VEEDU, KOTTIKADA P.O, THATTAMALA, KOLLAM -691020 5. ARJUN PRASAD S/O DR RAMAKRISHNA PRASAD, DEVIBHAVAN HOUSE, RPC P.O, VANDANPAYTHAL, MUNDAKKAYAM-686513. 6. ASIF SAFEEK S/O A. SAFEEK, NIZA MAHAL, NEAR TAGORE GARDEN, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM-695011 ## **RP.No. 1114 of 2017** 7. ABHIJITH S.S S/O S. SIVAKUMAR, TC 18/B24(1), CALIVERY KONKALAM JUNCTION, ARAMADA P.O, THIRUVANANTHAPURAM-695032. 8. RAZIQ RAFI S/O MOHAMMED RAFI, FRIDAY VILLA, T.C.14/416/4, POONTHI ROAD, KUMARAPURAM, THIRUVANANTHAPURAM-695011. 9. THE CHAIRMAN AL-AZAR MEDICAL COLLEGE & SUPER SPECIALITY HOSPITAL EZHALLOOR ROAD, KUMARAMANGALAM, THODUPUZHA, PIN-685608. 10. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 11. THE KERALA UNIVERSITY FOR HEALTH AND ALLIED SCIENCES, MEDICAL COLLEGE P.O, THRISSUR-680 596 REPRESENTED BY ITS REGISTRAR. R1-R8 BY ADV. SRI.SANTHOSH MATHEW R1-R8 BY ADV. SRI.ARUN THOMAS R1-R8 BY ADV. SRI.JENNIS STEPHEN R1-R8 BY ADV. SRI.VIJAY V. PAUL R1-R8 BY ADV. SMT.KARTHIKA MARIA R1-R8 BY ADV. SMT.MARIA ROY R1-R8 BY ADV. SMT.VEENA RAVEENDRAN R9 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.) R9 BY ADV. SRI.P.M.SANEER R11 BY ADV. SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE R10 BY SR.GOVERNMENT PLEADER SHRI V. MANU THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 07.12.2018, THE COURT ON 14-03-2018 PASSED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & RAJA VIJAYARAGHAVAN V, JJ.** .............................................................................. ## **R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017** ......................................................................... **Dated this the 14[th] March, 2018** ## **O R D E R** ## **P.R. Ramachandra Menon, J.** The Admission Supervisory Committee ( **ASC** in short) and the Admission & Fee Regulatory Committee ( **FRC** in short) for Medical Education, Kerala, both represented by the Manager are the review petitioners. The Review is sought for in respect of the judgment dated 25.10.2017 in W.P.(C)No.31814 of 2017, mainly contending that there is an error apparent on the face of the records, in so far as this Court, while allowing the said writ petition, had declared that the candidates seeking for admission to the medical courses need not to submit 'online' applications to the college where they seek admission. It is also pointed out that the observation of the Bench that 'the stipulation to have 'online' applications and the undertaking given by the Institutions **2** ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ in this regard have been set aside by the Apex Court' is a glaring mistake; as Annexure 1 interim order passed by the Bench of this Court, incorporating such a condition stands affirmed by the Apex Court as per Annexure 2 order dated 28.09.2016. Reliance is also sought to be placed on Annexure 4 directives dated 04.08.2016 issued by the ASC to all Medical Colleges, insisting to have online applications, which is reflected in Annexure 3 order dated 02.09.2016 as well- while granting conditional approval of the prospectus, besides various other orders/proceedings, which have become final. 2. When the above Review petition came up for consideration on 10.01.2018, it was admitted on that day. The respondents entered appearance and filed I.A.Nos.14, 15 and 16 of 2018, contending that the Committee does not have the power, competence or authority to have filed the Review Petition, it being a quasi judicial authority and hence the Review Petition was not maintainable; which hence was sought to be decided as a preliminary issue, by filing I.A.No.14 of 2018. I.A.No.15 of 2018 is for a direction to cause production of the decision taken **3** ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ by the Admission Supervisory Committee to file Review Petition and to furnish details of the Committee Members, who attended the said meeting and also to cause production of minutes of the meeting which authorised the Manager ( who is not a Member of the Committee) to file Review Petition. I.A.No.16 of 2018 is for accepting the documents produced as Annexures R1 and R2. The writ petitioners have filed counter affidavit in I.A.No.14 of 2018 pointing out the circumstances and authority of the Committee to bring the 'error apparent on the face of the record' to the notice of this Court. The Minutes of the joint meeting of the **ASC** and **FRC** held on 21.11.2017, authorising the Manager to file necessary proceedings by way of Review has been produced as Annexure 15. It is stated that the Manager is authorised to pursue and communicate with the Government/Institutions and such other Bodies in connection with the affairs of the Committee; adding that it was the Manager, who had filed the affidavit before the Apex Court in SLP(Civil)Nos.6646-6647 of 2017; a copy of which has been produced as Annexure 16. Similarly, a copy of the affidavit, sworn to by the Manager and **4** ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ filed before this Court in W.P.(C)No.31568 of 2015 has been produced as Annexure A17. It is stated that the said affidavits have been accepted by the Apex Court and this Court, as part of the Court records. 3. On production of the above documents, the writ petitioners/students of the Institutions (who challenged the proceedings of the Committee in rejecting approval of their admissions by filing W.P.(C)No.31814 of 2017) have filed W.P(C)No.1565 of 2018, questioning the authority of the Committee to take a decision to file Review petition against the judgment dated 25.10.2017 in W.P.(C)No.31814 of 2017; also contending that the Committee does not have the authority to take a decision to authorise the Manager, who is not a Member of the Committee to file the Review petition. 4. Going by the pleadings and proceedings, the following questions arise for consideration: - _(i) Whether there is any error apparent on the face_ - _of the records in the judgment sought to be reviewed:_ _ii) Was it necessary to have submitted online applications for getting admission_ ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **5** _iii) Is it correct to say that such stipulation in the orders/proceedings of the Committee and incorporated as Condition No.ii in Annexure 1 order passed by this Court, has been set aside/modified by the Apex Court as held in the judgment sought to be reviewed?_ _iv) Are the review petitioners liable to be treated as 'aggrieved parties', to sustain the review petition and to hold that the review petition is maintainable._ _v) Is the review petition sworn to and signed by the Manager of the Committee and the Review Petition filed by the Committee jointly through the Manager, liable to be acted upon?_ _vi) Even though the Committees are not competent to file Review Petitions, can it not be entertained by this Court 'suo motu', if any error apparent on the face of the record is brought to the notice of this Court, by the Court itself or by the Registry or even by any informant, especially when it is a court of record in terms of Article 215 of the Constitution of India?._ ## 5. To have an effective adjudication on the above points, it is necessary to have an appraisal of the sequence of events. The 'NEET' was introduced in Kerala for admissions in the Medical Colleges for the academic year 2016-17 onwards. The Admission Supervisory Committee (ASC), as early as on 04.08.2016 had given directives to be followed while making **6** ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ admissions for the year 2016-17, as per Annexure 4, clearly insisting inter alia, that applications shall be submitted to the colleges only online. Pursuant to introduction of NEET in Kerala as aforesaid, the Govt. of Kerala had issued two G.Os, viz. G.O(Rt.)No.2314/2016/H&FWD dated 20.08.2016 and G.O. (Rt)No.2336/2016/H&FWD dated 23.08.2016 taking over the process of admissions, particularly the counselling to be conducted. The Self Financing Medical Colleges had approached this Court challenging the said proceedings by filing various writ petitions and after hearing, Annexure 1 interim order was passed by this Court on 26.08.2016, incorporating certain specific conditions, particularly that the applications shall be 'online'. The above conditions are extracted below for convenience of reference: _“(i) Admissions to the MBBS/BDS courses shall be only on the basis of the ranking of candidates in the rank list of NEET, 2016, on the basis of the inter-se merit among the candidates, who have applied to the respective colleges._ _(ii) All the colleges agree that, the applications for admission_ ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **7** _are received only through on-line and that, the said process provides transparency with regard to the merit as well as the identities of the applicants. Such applications shall therefore be uploaded for the scrutiny of the Admission Supervisory Committee also immediately on the expiry of the last date for submission of applications._ _(iii) Since the counsel for the Admission Supervisory Committee has voiced a complaint that some of the colleges have not obtained approval of the Admission Supervisory Committee, for their Prospectus, the admission process shall be proceeded with only on the basis of a Prospectus, for which approval of the Admission Supervisory Committee has been obtained._ _(iv) The Admission Supervisory Committee is directed to either approve or disapprove the Prospectus submitted to them for approval, within three days of such submission._ _**”**_ 6. The Union of India had taken up the matter in appeal and after considering the issue, the Apex Court disposed of Civil Appeal No.9862 of 2016, as per Annexure 2 order dated 28.09.2016, interdicting only condition No.(i), i.e. with regard to the right of the college to conduct counselling and give admissions on its own, leaving it to be dealt with only by the Commissioner of Entrance Entrance Examination. All other conditions; particularly condition No(ii) insisting for 'online' ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ **8** applications were never touched, by virtue of which , they came to be affirmed as borne by Annexure 2. It was accordingly, that the Prospectus for approval submitted by the respondent educational institution was approved as per Annexure 3 dated 02.09.2016. 7. It is seen that various other additional directives also came to be issued by the Committee as per Annexures 5 and 6 dated 11.09.2016 and 19.09.2016 respectively. Yet another order was passed on 22.09.2016 by way of Annexure 7, based on the complaints from some students, that the first respondent/college was not following the instructions issued as per Annexures 4, 5 and 6. On submitting the list of admitted candidates/students for approval by the first respondent/college, the matter was considered and Annexure 8 order was issued on 06.03.2017, whereby the ASC withheld the admissions of 15 students including that of the writ petitioners, as the admission was made not only in violation of the various directives issued by the Committee, but also contrary to the specific directions/orders issued by this Court/Apex Court, particularly that the applications ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **9** had to be submitted 'online'. 8. The admissions given to the petitioners 1 and 3 to 7 were in the Management quota; whereas the admissions in the case of the petitioners 2 and 8 were under the NRI quota. There is no case for the petitioners that they had made any 'online' applications to the first respondent/institution, but for the contention that they had made online applications to other institutions and that pursuant to the advertisement for spot admission, they applied directly to the respondent institution and got selected. After scrutiny of the facts and figures, the Committee, as per Annexure 9 order dated 02.06.2017, rejected the admissions of the 8 candidates/writ petitioners, which however was sought to be reviewed by filing Annexure 10 petition dated 21.07.2017, also praying to permit their names to be registered for the first year MBBS Examination, followed by further requests. The request came to be turned down by the Committee as per Annexure 11 order dated 29.07.2017 **.** It was thereafter, that they sought to review the judgment dated 30.03.2017 in W.P(C)28856 of 2016 and connected cases ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **10** (Annexure 12 judgment). However, after pronouncement of the judgment dated 30.03.2017 in W.P(C)28856 of 2016, they got the above review petition filed before this Court dismissed on 05.12.2017 **.** The writ petitioners filed another Review Petition before the Committee which was ordered to be posted on 27.10.2017 and it was in the meanwhile, that they approached this Court by filing W.P(C)No.31814 of 2017. It is pointed out that the first respondent College had undertaken before this Court in W.P(C)30826 of 2016, that they had no grievance against the order passed by the Committee and that they had given effect to it **(Annexure 4)** . It is further pointed out that Annexure 13 order dated 22.03.2017 was passed by the Apex Court dismissing SLP 32580 of 2016 and connected case, where the challenge was against the rejection of the approval for admissions to the college, as it was not by way of 'online' applications (arising from the judgment passed by this Court in W.P.(C)No.32185 of 2016 and connected case-upholding the stand of the ASC.) 9. Rejection of the admissions for not having applied online **11** ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ was upheld by this Court in W.P.(C)No.28041 of 2016 and connected cases (by order dated 26.08.2016), which was affirmed by the Apex Court as per the order dated 28.09.2016 in Civil Appeal No.9862 of 2016 and connected cases. It is with reference to the above undisputed factual aspects that the review petitioners have pointed out that there is material error apparent on the face of the record, which requires to be corrected.] 10. Coming to the judgment sought to be reviewed, it has been observed in paragraph 3 that the necessity to have submitted online applications directly to the college concerned and the undertaking given by the institutions in this regard were set aside by the Apex Court by Ext.P9 order dated 28.09.2016 (Annexure 2) in **Civil Appeal No.9862 of 2016** . Despite our best efforts, we could not see any such finding in Annexure 2/Ext.P9 order passed in the above Civil Appeal, but for interdicting only the “condition No.(i)”. The necessity to submit 'online' applications and the undertaking in this regard given by the Association of Management Institutions was specifically incorporated in 'condition No.(ii)', which was never interfered by ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **12** the Apex Court. As such, the proper facts were obviously not brought to the notice of the Bench by the writ petitioners, when the matter was argued in detail. 11. It appears from the observations in paragraph 6 and elsewhere of the verdict sought to be reviewed, that the Court was given to understand that the conditions stipulated by the Division Bench for making online applications to a particular college as a pre-requisite to get admission was set aside by the Apex Court. This is further evident from the next paragraph, i.e. paragraph 7, where the Bench observed that according to the learned counsel for the College, there was no requirement in law to submit online applications 'to the college' concerned. The Bench observed in paragraph 13 of the verdict sought to be reviewed that the requirement of making online applications “ _**to the respective college”**_ seeking admission has been disapproved by the Apex Court. No such disapproval is brought to our notice by the learned counsel for the respondents/writ petitioners, as Annexure 2 verdict passed by the Apex Court deals only with the interdiction made in respect of 'condition No. ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **13** (i) and never with 'condition No.(ii)', which stipulated the necessity to submit 'online' applications. 12. The condition No.(ii) of Annexure 1 order passed by this Court on 26.08.2016 clearly stipulates that the application shall be submitted 'online' as agreed by the Association of Managements of the Self Financing Institutions. The said direction stood virtually affirmed by the Apex Court as per **Annexure 2 order** , whereby interference was made only with regard to 'condition No.(i)' and not with regard to the 'condition No.(ii)' stipulating the necessity to have online application. 13. In so far as the orders/proceedings passed by the ASC stipulating to submit only 'online' applications and the order passed by this Court, insisting to have only 'online' applications and the affirmation given by the Apex Court in this regard at different points of time, there could not have been any application otherwise than 'online' to be considered for admission. This being the position, the observation made by the Bench in the verdict sought to be reviewed, that such a condition/stipulation/undertaking had been modified by the Apex **14** ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ Court, is not factually correct and there is an error apparent on the face of the records, which can be corrected invoking the power of review. This is more so, since that another Division Bench of this Court [to which one of us was a member (PRRM (J)], has already held in the decision in **Anitta Job and other vs. State of Kerala and others [ 2018(1)KHC 662 (DB)] [W.P.(C)) 24133 of 2017 dated 04.01.2018]** that 'online' application is mandatory. 14. Now, coming to the question of maintainability of the Review Petition and the authority of the Manager of the Committee to file the proceedings, a copy of the resolution taken by the Committee in this regard on 21.11.2017 has been produced as **Annexure 15** (minutes of the joint meeting of the Committees) and copy of the affidavit filed before the Supreme Court in the SLP concerned and a copy of the counter affidavit filed before this Court in W.P(C)No.31568/2015 by the Manager have been produced as **Annexures 16 and 17** along with the counter affidavit dated 20.01.2018 filed by the Manager of the ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **15** office of the review petitioners in I.A.No.14 of 2018 in **R.P.No.1114 of 2018 in W.P.(C)No.31814 of 2017** . It is also brought on record that the Manager of the Committee was taking necessary steps to have interaction/communication with the various institutions/Government/such other Bodies and as such, it cannot be contended by the respondents/writ petitioners that the proceedings filed by the Manager of the Committee are without any authority and not liable to be acted upon. 15. With regard to the competence of the Committee to file Review Petition being a quasi judicial authority and not an aggrieved party, the respondents/writ petitioners have sought to place reliance on various rulings rendered by the Apex Court, explaining the scope of review. Reference to these decisions is not required as there is no dispute as to the limited jurisdiction to invoke the power of review, which could be invoked if there is an error apparent on the face of the records. Since we have already arrived at a finding that there is an error apparent on the face of the record, the Review Petition is of course maintainable. The remaining question is only whether the Review Petition filed by ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **16** the ASC and FRC, who, according to the respondents/writ petitioners, cannot be branded as an 'aggrieved party', is valid and proper to be acted upon. 16. It is the duty of any party to the proceedings to bring to the notice of the Court, if at all, there is any error apparent on the face of the records. If there exists an error apparent on the face of the records, the matter can be sought to be reviewed by the Court suo motu as well. It is also possible to invoke such power, once such error apparent on the face of the records is brought to the notice of this Court, either by the Registry or anybody interested or connected with the issue. The gist of the decision rendered by the Supreme Court is only that a stranger cannot seek to review a judgment or an order, unless he is aggrieved in any manner. Unlike this, the Committee was always a party to the proceedings, having been arrayed as respondent by the writ petitioners themselves and when the submission made by them was wrongly understood or a finding has been rendered based on an incorrect submission of facts by the writ petitioners, the error apparent on the face of the records could be ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **17** pointed out to have it corrected, which actually is to be regarded as part of duty of the said party to the proceedings to see that the Court does not go wrong. 17. In the instant case, the role played by the review petitioners, who were parties to the proceedings, is only that of an informant in this regard and the Committee is not much worried about the consequence, but for causing the factual mistake to be corrected, which otherwise may adversely affect the course and proceedings being pursued by the Committee in other cases as well. This being the position, this Court is of the firm view that the challenge raised by the writ petitioners against the maintainability of the Review Petition is thoroughly wrong and misconceived and it stands repelled. This Court holds that the Review Petition is maintainable and there is an error apparent on the face of the record, which requires to be corrected. 18. At the same time, there is a contention for the writ petitioners that the purpose cannot be a futile exercise and that transparency in admissions has not been adversely affected in any manner. It is pointed out that there was no complaint from ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **18** anybody, that any other more meritorious candidate's chance was lost because of the admissions given by the respondent Institution. But the learned Standing Counsel for the Committee points out that around 355 applications were there, as per the details furnished in the website, out of which admissions had to be confined to 75 seats in the Management/NRI quota. Unless the applications were made 'online', it would not be possible to ascertain whether _inter se_ merit was maintained by the educational institution, to ascertain transparency. 19. There is also a case for the writ petitioners as well as the educational institution, that it was by virtue of the enabling provision under Clause (17) of Ext.P7 **,** permitting 'spot admission' by the educational institution itself, to be finalised by 30.09.2016 and that admissions were given accordingly to the writ petitioners. But the fact remains that no counselling could have been done directly by the institution, giving the admissions after Annexure 2 order was passed by the Supreme Court on 28.09.2016, as 'condition No:(i)' in Annexure I order passed by the Division Bench of this Court was set aside. By virtue of ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **19** Annexure 2 order passed by the Supreme Court on 28.09.2016, the concession given by the Committee as per Clause (17) of Ext.P7 dated 22.09.2016 has lost significance and admission could have been pursued only as per Annexure 2 order dated 28.09.2016. If the writ petitioners/educational institution contend that they were not aware of the Supreme Court order (Annexure 2) dated 28.09.2016, when the admissions were given and finalised on that date, then they cannot be heard to say that admissions were made without adhering to the necessity to have 'online' applications, stating that such stipulation/undertaking given before this Court earlier, had been set aside by the Apex Court as per Annexure 2 order. In other words, the contentions prima facie do not reconcile with each other. This Court does not propose to go into this aspect in detail at this stage, as it is a matter to be decided after affording a full fledged hearing to both the sides and the scrutiny in the Review Petition is only with regard to the fact whether there is any error apparent on the face of the records, to recall the judgment and to have the matter re-considered. Hence, we are not expressing ## _**R.P.No.1114 OF 2017 IN W.P.(C)No.31814 of 2017**_ ## **20** anything on merit for the time being, but for holding that there is an error apparent on the face of the record and the judgment sought to be reviewed requires to be re-called. It is ordered accordingly. The judgment dated 25.10.2017 stands recalled. The Review Petition stands allowed and the writ petition is revived and ordered to be listed for hearing before the regular Bench as per the roster in the next week. ## **P.R. RAMACHANDRA MENON, JUDGE** **RAJA VIJAYARAGHAVAN V, JUDGE** lk