Anusree G. Nambiar and Bilal Ameer v Union of India, Medical Council of India, State of Kerala, Admission Supervisory Committee for Professional Colleges in Kerala, Commissioner for Entrance Examinations, Karuna Medical College, MES (Muslim Educational Society) Dental College, Dental Council of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 17TH DAY OF JULY 2017/26TH ASHADHA, 1939** ## **WP(C).No. 23572 of 2017 (V)** **----------------------------** ## **PETITIONERS:** - **-------------** **1. ANUSREE.G.NAMBIAR AGED 19 YEARS, D/O.GIREESAN,C.V SATHIA-KAMAL, NEAR KAMBALA SIVA TEMPLE, KUTTIPURAM P.O, MALAPPURAM DISTRICT, PIN 679 571** ## **2. BILAL AMEER** **AGED 21 YEARS, S/O. AMMES S,KALLUVETTAN KUZHI PUTHEN VEEDU,POOLODE, MATHIRA P.O, KADAKKAL, KOLLAM 691 536** ## **BY ADV. SRI.RAJIT** ## **RESPONDENTS:** - **--------------** **1. UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF LAW & JUSTICE, NEW DELHI** **2. MEDICAL COUNCIL OF INDIA POCKET-14,SECTOR-8,DWARAKA PHASE-1 NEW DELHI 110 077 REPRESENTED BY THE SECRETARY** **3. STATE OF KERALA REPRESENTED BY SECRTARY, HEALTH AND FAMILY WELFARE(S) DEPARTMENT, THIRUVANANTHAPURAM** **4. ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL ` COLLEGES IN KERALA,RAM MOHAN PALACE,OLD HIGH COURT BUILDING, ERNAKULAM 682 031.** WPC 23572/2017 2 ## **5. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS THIRUVANANTHAPURAM, KERALA** **6. KARUNA MEDICAL COLLEGE,VEILAYODI, CHITTUR, PALAKKAD-691 536** **7. MES(MUSLIM EDUCATIONAL SOCIETY) DENTAL COLLEGE, MALAPARAMBA P.O, PALACHODE, PERINTHALMANNA, MALAPPURAM DISTRICT.** ## **8. DENTAL COUNCIL OF INDIA, KOTLA ROAD, NEW DELHI 110002, REPRESENTED BY THE SECRETARY.** **R2 BY ADV. SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA** **R8 BY ADV. SRI.PRAKASH M.P., SC, DENTAL COUNCIL OF INDIA R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **R1 BY ADV. SRI.KRISHNADAS P.NAIR, CGC R 5 BY SENIOR GOVERNMENT PLEADER SRI T. RAJASEKHARAN NAIR R4 BY ADV. SMT. MARY BENJAMIN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 23572/2017 3 ## **WP(C).No. 23572 of 2017 (V)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 A TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DTD 22-3-2017 IN SLP NO 32580/2016 AND CONNECTED CASES** ## **EXHIBIT P1(A) A TRUE COPY OF THE ADMISSION MEMO** **EXHIBIT P2 A TRUE COPY OF THE CERTAIN UNREPORTED DECISION OF THIS HON'BLE COURT IN RESPECT OF LEVY OF LIQUIDATED DAMAGES** **EXHIBIT P3 A TRUE COPY OF THE APPROVAL ORDER DATED 06-09-2016 OF THE 4TH RESPONDENT** **EXHIBIT P4 A TRUE COPY OF THE REVISED APPROVAL ORDER DATED 1009-2016 OF THE 4TH RESPONDENT** **.EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT** **EXHIBIT P6 A TRUE COPY OF THE ORDER DT 18-12-2014 IN WP(C) NO 941/2014** ## **EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS TO THE 6TH RESPONDENT COLLEGE** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** ## **KS.** ## **True copy** ## **P.S. (Hr.Gr.)To Judge** ## **P.R. RAMACHANDRA MENON & SHIRCY V., JJ.** ## **==============================** ## **W.P.(C) No. 23572 of 2017** **============================== Dated this the 17[th] day of July, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The petitioner has approached this Court with the following prayers: i. Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents 1 to 6 to admit the petitioners to the second year MBBS course in the 6[th] respondent college. ii. Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents 1 to 6 to admit the petitioners to the First year MBBS course in the 6[th] respondent college as directed in Ext.P1. iii. Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents 1 to 6 to admit the petitioners to the First year MBBS course in the 6th respondent college, by accepting the fees of Rs.4.40 Lakhs fixed by the 4th respondent provisionally, in respect of WPC 23572/2017 2 the 6[th] respondent college. iv. Issue a writ of mandamus or any other appropriate writ order or direction commanding the 7th respondent to return the certificate of Petitioners submitted by them while being admitted to the First Year BDS course without claiming liquidated damages. v. issue a writ of mandamus or any other appropriate writ order or direction commanding the 6[th] respondent to pay the liquidated damages to the 7[th] respondent; in case it is found that the petitioners are liable to pay liquidated damages. vi. Issue a writ of mandamus or any other appropriate writ order or direction commanding the 6[th] respondent to pay compensation as deemed fit by this Hon'ble Court to compensate the loss of one academic year, by the petitioners. vii. Grant such other relief deemed fit to this Hon'ble court. 2. Heard the learned counsel appearing for the petitioners, learned Central Government Counsel appearing for the 1[st] respondent and the learned Standing Counsel appearing for the 2[nd] respondent. 3. The crux of the submission made by the learned WPC 23572/2017 3 counsel for the petitioners is that the petitioners were aspirants for the first year MBBS course in the last year i.e. 2016-17 in the 6[th] Respondent's college. Because of the mischief committed by the said college, admission was virtually denied to the petitioners, who hence had to join for BDS Course in the 7[th] respondent's College and are pursuing the studies there. In the course of further proceedings, the lapses on the part of the 6[th] respondent College were specifically adverted to and the Writ Petition filed by the College challenging the proceedings issued by the Admission Supervisory Committee were declined to be interfered by this Court, however giving appropriate directions to the Committee to have the matter finalised. Pursuant to the said direction, the matter was finalised by the Committee, whereby eligibility of the petitioners to get admission for the first year MBBS was settled. Though the College and other students, who were adversely affected by WPC 23572/2017 4 the said order, had approached the Apex Court by way of different SLPs, challenging the verdict passed by this Court , the same did not turn to be fruitful and the SLPs. were dismissed as per Ext.P1 order dated 22.3.2017. As per the very same order, the Apex Court held that the petitioners and other persons concerned (total 30) were entitled to have admission for the first year MBBS. However, considering the advanced stage of proceedings, the relief was moulded by the Apex Court by directing to grant admission for the first year MBBS in the 6th respondent College for the next Academic year i.e. 2017-18. By virtue of the said course of events, learned counsel submits that the petitioners are liable to satisfy only the fees that was payable for the last year. The learned counsel adds that, by virtue of the Ruling rendered by the Supreme Court in **Asha v. PT.B.D. Sharma University of Health Sciences and Others [ (2012) 7 SCC 389],** the petitioners, who WPC 23572/2017 5 virtually lost an year, should be accommodated in the “2[nd] year MBBS” in the Academic year 2017-18. There is yet another contention, that the petitioners, despite the request made before the 7th respondent, are not given the TC and Certificates surrendered in the said College in connection with the admission secured for the BDS, insisting to pay liquidated damages. It is stated that the petitioners are not liable to satisfy liquidated damages in view of particular facts and circumstances and hence the challenge. 4. The learned Standing Counsel appearing for the Committee points out that exactly similar case praying for a lesser fee (as fixed for the year 2016-17) in respect of the Academic year 2017-18 came up for consideration before this Court today and as per the judgment passed in the forenoon in W.P.(C) No. 23392/2017, interference has been declined and the Writ Petition stands dismissed. It was noted by this Court that the Apex Court had extended only a WPC 23572/2017 6 limited benefit enabling the persons like the petitioners to forego the exercise of participating in any common entrance examination (NEET) and coming out successful; by giving a 'green card' to have direct entry in the Admission for the first year MBBS i.e 2017-18. This being the position, the petitioners are liable to satisfy the fees payable for the year 2017-18 and the prayer raised to the contrary is not liable to be interfered. 5. With regard to the second relief, i.e. the alleged eligibility to join for the “second year MBBS”, this Court finds it difficult to accept the said proposition as well. The learned counsel submits that the subjects, except the topic 'Anatomy', in the syllabus are almost same in respect of BDS and the first year MBBS . It does not come within the domain of this Court to make a comparative analysis as to the various subjects taught for different courses and its syllabus. As such, there cannot be a direction to induct the WPC 23572/2017 7 petitioners directing into the second year MBBS course. In the decision sought to be relied on [ **(2012) 7 SCC 389** ], the Apex Court referred to the factual situation as discernible from paragraphs 34 and 35. Still, it was specifically observed that no specific finding was being rendered with regard to the position as to the comparable nature of the two courses and relief was granted only based on the undisputed facts, as put forth by the University and the Medical Council. In the instant case, it is a different University and courses are also different. The particulars of syllabus or such other things are not there. This Court does not have any expertise to make any such comparative analysis. Even otherwise, the direction given by the Supreme Court as per Ext.P1 is only to grant admission for the first year MBBS for the year 2017-18. No declaration was made by the Supreme Court that the petitioners were entitled to be admitted for the 'second year MBBS'; skipping WPC 23572/2017 8 the first year MBBS course. For this reason also, the relief sought for by the petitioners is not liable to be entertained and it is declined accordingly. 6. Coming to the third relief as to the course pursued by the 7[th] respondent Institution in detaining the Certificates belonging to the petitioners and not releasing the same, so as to enable the petitioners to join for the first year MBBS in the 6[th] respondent College, it is brought to the notice of the Court that the petitioners have already moved the Admission Supervisory Committee and the matter is pending consideration before the Committee. The learned Standing Counsel for the Committee submits that the complaint is a new one dated 28.6.2017 and that appropriate action will be taken thereon, in accordance with law, after affording an opportunity of hearing to the petitioners as well as the 7[th] Respondent Institution. In the said circumstances, while declining the reliefs WPC 23572/2017 9 sought for in respect of the former two apects, we find it appropriate to direct the 4[th] Respondent Committee to finalise Ext P5 series and to pass appropriate orders in accordance with law; after affording an opportunity of hearing to both the petitioners as well as the 7[th] Respondent Institution. It shall be done at the earliest, at any rate within six weeks. ## **Sd/-** **P.R. RAMACHANDRA MENON JUDGE** ks **Sd/SHIRCY V. JUDGE** True copy P.S. (Hr.Gr.)To Judge