Bismi S. Nazeer v. State of Kerala and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935 WP(C).No. 25239 of 2013 (D) ---------------------------- PETITIONER(S): ---------------------- BISMI. S.NAZEER AGED 18 YEARS, D/O. NAZEER KHAN, 'SHEBAA', TOWN WEST NAGAR, HOUSE NO. 154, MUSLIM STREET KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691 506. BY ADV. SRI.T.GOPALAKRISHNAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM -695 001. 2. TE ADMISSION SUPERVISORY COMMITTEE FOR - PROFESSIONAL COLLEGES, REPRESENTED BY ITS CHAIRMAN OLD HIGH COURT BUILDING, RAM MOHAN PALACE, HALL NO. 8 ERNAKULAM, KOCHI - 682 031. 3. KERALA PRIVATE COLLEGE MANAGEMENT ASSOCIATION, REPRESENTED BY ITS SECRETARY KPMCMA OFFICE, MALABAR MEDICAL COLLEGE CAMPUS MODAKKALLUR P.O., ATHOLI, KOZHIKODE- 673 315. 4. THE CHAIRMAN SREE GOKULAM MEDICAL COLLEGE AND RESEARCH FOUNDATION VENJARAMOODU P.O., THIRUVANANTHAPURAM - 695 607. R2 BY ADV. SMT.MARY BENJAMIN, STANDING COUNSEL, ADMISSION SUPERVISORY COMMITTEE R3 BY ADV. SRI.P.SANJAY R4 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SENIOR ADVOCATE) R4 BY ADV. SRI.TONY GEORGE KANNANTHANAM R1 BY GOVERNMENT PLEADER SHRI SYAMKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25239 of 2013 (D) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1-TRUE COPY OF THE ORDER OF ASE DATED 26/09/2013. EXHIBIT-P2-TRUE COPY OF THE JUDGMENT IN W.P(C) 20995/2013 DATED 27/09/2013. EXHIBIT-P3-TRUE COPY OF THE BANK STATEMENT OF CLOSING BALANCE OF RS.25,37,152/- ISSUED BY THE CORPORATION BANK, KOTTARAKKARA BRANCH. EXHIBIT-P4-TRUE COPY OF THE BENEFICIARY DETAIL OF STATE BANK OF TRAVANCORE OF RS.8,00,000/- DATED 27/09/2013. EXHIBIT-P5-TRUE COPY OF THE REPRESENTATION DATED 29/09/2013. EXHIBIT P6 TRUE COPY OF THE GOLD LOAN RECEIPT NO.6091154 ISSUED FROM MUTHOOT FINANCE, KOTTARAKKARA BRANCH EXHIBIT P7 TRUE COPY OF THE GOLD LOAN RECEIPT NO.6091155 ISSUED FROM MUTHOOT FINANCE, KOTTARAKKARA BRANCH EXHIBIT P8 TRUE COPY OF THE MEDICAL FITNESS CERTIFICATE DATED 24.9.2013 EXHIBIT P9 TRUE COPY OF THE VACCINATION CERTIFICATE DATED 27.09.2013 EXHIBIT P10 TRUE COPY OF THE CONFIRMATION LETTER OF THE BANK GUARANTEE OF RS.28 LAKH ISSUED BY THE FEDERAL BANK, KOTTARAKKARA BRANCH DATED 8.11.2013 EXHIBIT P11 TRUE COPY OF THE CERTIFICATE DATED 8.11.2013 EXHIBIT P12 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 1.10.2013 RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R4(a) TRUE COPY OF THE NOTIFICATION DATED 26.09.2013 ISSUED FROM THE SECRETARY OF KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT ASSOCIATION EXT.R4(b) TRUE COPY OF THE ALLOTMENT LIST OF CANDIDATES FOR ADMISSION TO MBBS COURSE 2013-14 //TRUE COPY// ## **K.M.JOSEPH & A.HARIPRASAD, JJ.** ## **--------------------------------------** ## **W.P.(C) No.25239 of 2013** **-------------------------------------Dated this the 12[th] day of November, 2013.** ## **JUDGMENT** ## K.M.Joseph, J. Petitioner has approached this Court seeking the following prayers: “i) To call for the Admission details of the 4[th] respondent Sree Gokulam Medical College and Research Foundation and to declare that the Admissions without norms are void. ii) To issue writ of mandamus or any other appropriate writ, order or direction directing the respondents to admit the petitioner in the 4[th] Respondent Sree Gokulam Medical College and Research Foundation controlled by the 3[rd] respondent.” 2. Briefly put, the case of the petitioners is as follows: Petitioner secured rank No.281 in the Entrance Examination conducted by the Admission Supervisory Committee for Professional Colleges on 21.07.2013 for selection and admission for the management seats for the MBBS course for the academic year 2013-2014 to the eight medical colleges who are members of the 3[rd] respondent Kerala Private Medical College Management Association. The petitioner preferred writ petition before this Court 2 WP(C) No.25239/2013 against the wrongful act of the respondents in not considering the petitioner's name for admission to the MBBS course in the management quota. The petitioner obtained an interim order from this Court directing the Association to block one seat to the petitioner in any of the eight member colleges. During the pendency of the writ petition the 2[nd] respondent Admission Supervisory Committee has passed an order dated 26.09.2013 granting admission to the petitioner in the 4[th] respondent college. In view of the above said order this Court has pleased to close W.P.(C) No.20995 of 2013 preferred by the petitioner. The petitioner on 28.09.2013 at 10 a.m. appeared before the Principal of the 4[th] respondent medical college with all relevant documents for securing admission to MBBS course. She brought `28 lakhs in cash instead of bank guarantee and the management assured the petitioner that she should wait upto 5'o clock and they will receive the security deposit and other fees from the petitioner and complete the admission procedure. The petitioner along with relatives waited there and at 5 p.m. the management informed her that admission could not be given to her. 28.09.2013 was a bank holiday due to annual account closing. So the petitioner withdrew money from the bank on 27.09.2013 and arranged the balance amount by pledging gold ornaments. Another person was illegally admitted instead of the petitioner by the management. A valuable opportunity is denied to the petitioner and the seat kept vacant is illegally filled by admitting another. Petitioner preferred a representation before the Admission Supervisory Committee stating the denial of admission by the 4[th] respondent management. In Priya Gupta's case the 3 WP(C) No.25239/2013 Supreme Court specifically said that the cut off date will not be a bar to admit proper candidates instead of illegal ones and this Court has got ample power to interfere in the matter. Petitioner may be admitted to the 4[th] respondent college. 3. Counter affidavit is filed by the 4[th] respondent. Therein, it is, inter alia, stated as follows: “3. ....... The petitioner had not come to the College at all on the 28[th] of September or any other day. 4. On the 28[th] morning, somebody claiming to be a representative of the petitioner came to our office and said that they have obtained Bank Guarantee for Rs.18 lakhs and sought for some time to provide Bank Guarantee for the remaining portion. That request was denied. The said agent was informed that we were prepared to wait till 5 P.M. on the next day. 5. The same day after noon, the petitioner's mother came and made the same request we expressed our helplessness. 6. None of them told us that they had brought Rs.28 lakhs cash down and none of us had told any of them to wait till 5 P.M. ## xxxxxxxxxx 14. Petitioner's rank was 281. Candidate with rank No.309 was admitted then because he had furnished 4 WP(C) No.25239/2013 the necessary Bank Guarantee. We had no preference among any of those allotted by Ext.R4(b).” 4. Petitioner has filed a reply affidavit. Therein, it is, inter alia, stated as follows: “5. Para 5 of the Counter Affidavit admits that “the same day afternoon, the petitioner's mother came and made the same request and we expressed our helplessness”. That statement also coincide with the version of the petitioner that they were present before the authorities of the 4[th] respondent with all relevant documents and cash. The petitioner came to the 4[th] Respondent College along with the above said Azad and Driver Shaheen at 10'o clock. We brought Rs.28 lakh in cash instead of sufficient Bank guarantee, since the petitioner obtained the Bank guarantee of Rs.18 lakh only. We reasonably apprehended that the Management will reject an insufficient bank guarantee, so we arranged the entire of Rs.28 lakh and brought it when we came there at 10 a.m. In addition to that my mother withdrew Rs.14,68,000/- from Kottarakkara Branch of Corporation Bank and joined with us at 11.15 a.m. on the same day. We arranged Rs.10,00,000/- from Smt.Jaleela, Ochira, who is my aunt on 27.9.2013. She entrusted the cash to us and the above said Azad kept the same. We 5 WP(C) No.25239/2013 also pledged the gold ornaments of me, my mother and my sister Jasmi Nazeer. The major portion of the gold ornaments contained the same which was bought in advance to facilitate the marriage of my sister Jasmi. My father Mr.Nazeerkhan is working at abroad. Mr.Jaleel a close friend of my father and also a business man arranged Rs.8 lakh in cash and handed over to us on 27.9.2013. I do hereby reiterate the fact that on 28.9.2013 at 10.00 a.m. I along with Mr.Azad brought the said Rs.28 lakh in cash since I obtained an insufficient bank guarantee of Rs.18 lakh only. When it was informed to the Office of the 4[th] Respondent, the Office Authorities informed the petitioner to meet one Mr.Manojan who is the representative of the Management. Then the petitioner along with Mr.Azad, who is a teacher and a close relative of the petitioner met Mr.Manojan and he told that we should wait upto 5'o Clock and after the meeting of the Management Committee, they will receive the Security Deposit and other fees from the petitioner and complete the Admission procedure. True copy of the Gold Loan receipt No.6091154 issued from Muthoot finance, Kottarakkara Branch is produced herewith and marked as Exhibit P6 and true copy of the Gold Loan Receipt No.6091155 is produced herewith and marked as 6 WP(C) No.25239/2013 Exhibit P7.” 5. We heard the learned counsel for the petitioner and the learned counsel for respondents. 6. Learned counsel for the petitioner submits that pursuant to Ext.P1 petitioner went to the 4[th] respondent with `28 lakhs in cash. Petitioner could get bank guarantee for only `18 lakhs. Petitioner relies on the judgment of the Apex Court in **Asha v. PT.B.D. Sharma University of Health Sciences and others (2012) 7 SCC 389)** . Petitioner would submit that the admission should be fair, transparent and non-exploitive. Petitioner has a case that she was not aware of the college to which she was allotted. 7. Learned Senior Counsel for the 4[th] respondent would point out that admittedly the petitioner had not come with the bank guarantee. Under the notification, bank guarantee is to be given. Learned Senior Counsel also relied on the judgment of the Apex Court in **Islamic Academy of Education and another v. State of Karnataka and others ((2003) 6 SCC 697** ). The relevant dictum therein reads as follows: “ It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years 7 WP(C) No.25239/2013 the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year. If an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance.” The Supreme Court has frowned upon accepting the fees in full, it is submitted. Learned Senior Counsel submitted that the case of the petitioner that she came with `28 lakhs in cash is unbelievable. He points out Ext.P5 which is the representation given by the petitioner to the Admission Supervisory Committee to contradict the case of the petitioner. He would also refer to the documents to point out that the case of the petitioner cannot be relied on. 8 WP(C) No.25239/2013 8. Learned counsel for the 3[rd] respondent Association would in fact point out that the case of the petitioner that petitioner was not aware of the college to which she was allotted is incorrect as Ext.P1 itself shows that she was allotted to Gokulam Medical College. Still further more, Ext.P2 case was disposed of on 27.09.2013. At that time petitioner was aware that she stood allotted to Gokulam Medical College, it is pointed out. 9. The only point which we need consider is whether the petitioner despite satisfying the requirements as per law was denied the admission. The case of the petitioner is specific that she and her relatives went to the college at 10 a.m. on 28.09.2013 with `28 lakhs in cash and waited there till 5 p.m.. Even assuming from the moment that she could have given `28 lakhs without producing bank guarantee in view of what is provided in paragraph 8 of the decision in **Islamic Academy** 's case which is extracted above, we may not be in a position to find in proceedings under Article 226 of the Constitution of India that the petitioner has gone with `28 lakhs in cash. We notice that the case sought to be set up in Ext.P5 representation filed before the Admission Supervisory Committee does not tally with her case in the writ petition. There, petitioner does not have a case that she went with `28 lakhs in cash. No doubt, the petitioner has produced certain documents. But even going by the documents they do not show that the petitioner and relatives had `28 lakhs around at the time in question. 10. The writ court is concerned with any illegality which may have been committed by the self financing college. Learned counsel for the petitioner has 9 WP(C) No.25239/2013 drawn our attention to the 1[st] prayer. We would think that the petitioner has not laid foundation as such. It may be true that somebodyelse has been admitted. We failed to understand the locus of the petitioner to challenge the admission given to somebodyelse. Petitioner has not established any right by herself, in view of the fact that she failed to prove, in our view convincingly and as required in a proceeding under Article 226 of the Constitution of India, that she went with even `28 lakhs in cash. In such circumstances we do not think that the petitioner has made out a case for interference under Article 226 of the Constitution. Writ Petition fails. It is dismissed. ## **K.M.JOSEPH, JUDGE.** ## **A. HARIPRASAD, JUDGE.** **cks**