Chairman, Sree Krishna College of Pharmacy & Research Centre v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938** **RP.No. 290 of 2017 () IN WP(C).3269/2017 ------------------------------------------** ## **AGAINST THE JUDGMENT IN WP(C) 3269/2017 of HIGH COURT OF KERALA DATED 3.2.2017** **REVIEW PETITIONER(S)/RESPONDENT NO.5: ------------------------------------** **THE CHAIRMAN SREE KRISHNA COLLEGE OF PHARMACY & RESEARCH CENTRE, NEAR RAILWAY STATION, PARASSALA, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.GEORGE POONTHOTTAM** ## **RESPONDENT(S)/PETITIONERS & RESPONDENTS 1 TO 4:** **-----------------------------------------------** ## **1. NIDHIN VINU** **S/O. VINU S, NIDHIN BHAVAN, TENGUVILAKOM, KARUMANOOR, PARASSALA, THIRUVANANTHAPURAM - 695 502.** ## **2. SHIBINA NAJEEM,** **D/O. NAJEEM, SHIBINA MANZIL, PAYYAKODU, OYOOR, KOLLAM - 691 510.** ## **3. ARSHA ANAND,** **D/O. SIVANANDAN, ANAND BHAVAN, PAZHUKADA, AYIRA, THIRUVANANTHAPURAM - 695 502.** ## **4. AYOOB SALAHADHEEN,** **S/O. MAMMED, KARUVADIYIL HOUSE, KOORACHUNDU, KOZHIKODE - 673 527.** ## **5. ALFYA K.S,** **S/O. P. ABDUL KAREEM, ALFIYA MANZIL, VALIYAVILA, KOCHALUMOODU, KONCHIRA, THIRUVANANTHAPURAM - 695 615.** ## **RP.No. 290 of 2017 () IN WP(C).3269/2017** ## **6. AADARSH T.M,** **S/O, THULASEEDHARAN K, VALANVILA VEEDU, TENOORKONAM, KOTTAPPURAM, THIRUVANANTHAPURAM - 695 521.** ## **7. ABISHA V,** **MINOR, AGED 17 YEARS AND 11 MONTHS, D/O. G. VINCENT, PULAVANVILAI, KALLANKUZHI P.O, TAMIL NADU - 629 166, REPRESENTED BY HER MOTHER, SMT. R. SULOCHANA.** ## **8. LEKSHMY KRISHNA,** **D/O. BALAKRISHNAN V, LEKSHMY NIVAS, KADAYILLVILA, PLAMOOTTUKADA, THIRUVANANTHAPURAM - 695 122.** ## **9. DIVYA S. NAIR,** **D/O. MANOHARAN NAIR T, KALANILAYAM, PARASSALA, PARASUVAIKKAL, THIRUVANANTHAPURAM - 695 508.** ## **10. CHAITHRA C.P,** **D/O. CHANDRAN A.K, CHAITHRAM, MEETHALE MUNDAYIL, NANMANDA, KOZHIKODE - 673 613.** ## **11. NEJNA N,** **D/O. NOUSHAD M, PEZHUVILAVEEDU, KARIKONAM, AYUR, ARKKANNOOR, KOLLAM - 691 533.** ## **12. GOPIKA SADASIVAN,** **D/O. V. SADASIVAN PILLAI, TC - 5/2433/5, PNRA - B14A, BEHIND K.P, SANITARY STORES, KOWDIAR, THIRUVANANTHAPURAM 695 003.** ## **13. JIBIN R,** **S/O. RAJAN V, GRACE HOUSE, KUTTANINATHIL, THIRUPURAM, THIRUVANANTHAPURAM - 695 133.** ## **14. NAVEEN V.J,** **S/O. VIJAYAKUMAR V.S, SUDARSANAM, NEAR M.N.L.P S. VELLAYANI, NEMOM, THIRUVANANTHAPURAM - 695 020.** ## **15. LIYA S. SAJI,** **D/O. SAJI K SATHYAN, BIJI BHAVAN, CHANDANAKATTY, PARASSALA, THIRUVANANTHAPURAM - 695 502.** ## **16. LINCY L,** **D/O. LAWRENCE K, THETTIKUZHI PUTHEN VEEDU, KODAVILAKOM, PARASSALA, THIRUVANANTHAPURAM - 695 502.** ## **17. ABHIRAMI V.S,** **D/O. SREEKANDAN NAIR N, ABHI BHAVAN KUNNATHUVEEDU MULLASSERY, KARAKULAM, THIRUVANANTHAPURAM - 695 564.** ## **RP.No. 290 of 2017 () IN WP(C).3269/2017** ## **18. REVATHI MOHAN,** **D/O. MOHAN KUMAR R, MIDHUNAM, KOOTTAPPANA, NEYYATTINKARA, ARALUMOODU, THIRUVANANTHAPURAM - 695 123.** ## **19. RESHMA ZAVIER,** **D/O. ZAVIER ALEX, SAJI SADANAM, PULLICHIRA, KOLLAM - 689 304.** ## **20. MALAVIKA S,** **D/O. SREEKANTAN NAIR K, SREE GEETHAM, T.C. 53/256/1, PONNUMANGALAM, NEMOM, THIRUVANANTHAPURAM - 695 020.** ## **21. MEENU PRAKASH,** **D/O. JAYAPRAKASH, PRAKASHAM, KURUKANNI, VARKALA, THIRUVANANTHAPURAM - 695 141.** ## **22. ATHUL S.S,** **S/O. SAJEEV D, KALIVILAKOM, VETTIMONKONAM, KALLAMBALAM, THOTTAKKADU, THIRUVANANTHAPURAM - 695 605.** ## **23. STATE OF KERALA,** ## **DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **24. THE ADMISSION SUPERVISORY COMMITTEE, T.C NO. 15/1553-4, PRASANTHI BUILDINGS, M.P. APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014. REPRESENTED BY ITS CHAIRMAN.** **25. LBS CENTRE FOR SCIENCE & TECHNOLOGY, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY THE DIRECTOR.** **26. THE KERALA UNIVERSITY FOR HEALTH SCIENCES, MEDICAL COLLEGE P.O, THRISSUR - 680 596, REPRESENTED BY THE REGISTRAR.** **R BY SMT.K.K. RAZIYA R BY SRI.GEORGE JACOB (JOSE) R BY GOVERNMENT PLEADER R BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SC R BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMI** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 20-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **shg/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - R.P.No.290 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of March, 2017** ## **O R D E R** ## **Ravikumar, J.** This review petition is filed praying for a review of the judgment dated 3.2.2017 passed by this Court in W.P.(C) No.3269/2017. The petitioner herein was the 5[th] respondent in the said writ petition which was dismissed in limine. The petitioners therein were students admitted to B.Pharm course in the College of the review petitioner viz., in Sree Krishna College of Pharmacy and Research Centre, Parassala, Thiruvananthapuram. They filed the said writ petition seeking the following reliefs: - i) to issue a writ in the nature of certiorari, or other appropriate writ or order quashing Exhibit P8 order of the 2[nd] respondent. - ii) to issue a writ in the nature of certiorari, or other appropriate writ or order quashing Exhibit P9 order of the 2[nd] respondent. - iii) to issue a declaration that the petitioners are entitled to continue and pursue their course of study in the B.Pharm course in the 5[th] respondent College and that they have been validly granted admissions therein. - iv) to issue a writ in the nature of mandamus, or other appropriate writ or order directing the 2[nd] respondent Admission Supervisory Committee to grant approval to the R.P.No.290 of 2017 2 admissions of the petitioners for the B.Pharm course in the 5[th] respondent College. - v) To issue a writ in the nature of mandamus, or other appropriate writ or order directing the 4[th] respondent University to grant registration to the admissions of the petitioners for the B.Pharm course in the 5[th] respondent College. 2. The order impugned therein was Ext.P8 order dated 31.12.2016 whereby the Admission Supervisory Committee declined to approve the admission of the petitioners therein, in the college of 5[th] respondent on the ground that they had been given illegal admission in violation of procedures and therefore it amounts to clear exploitation, capitation fee collection, admission in violation of merit and disobedience of court order dated 11.8.2016 in W.P.(C)No.25203/2016. While considering the contentions and reliefs sought for in the writ petition we had taken note of the fact that the review petitioner herein viz., 5[th] respondent therein had earlier approached this court and filed W.P.(C)No.25203/2016 virtually challenging the allotment of Government merit quota candidates made on 24.7.2016 by the third respondent LBS Centre for Science R.P.No.290 of 2017 3 and Technology, Nandavanam, Palayam, Thiruvananthapuram to the very same course in question viz B.Pharm course for the very same academic year. On perusal of Ext.P10 judgment of this Court passed in W.P.(C) No.25203/2016 we found that essentially the contention of the 5[th] respondent viz., the revision petitioner was that the LBS had no right to allot students after 15.7.2016 or at any rate after 19.7.2016, the date of first allotment against the government quota. Ext.P10 judgment would reveal that this court had declined to accept the contention of the review petitioner who was the petitioner therein that the cut off date for the aforesaid purpose was 15.7.2016 and found that the cut off date was extended to 15.8.2016 and thereafter, up to 31.8.2016. Needless to say that in that view of the matter vacancies under the Government merit quota would not have lapsed before the expiry of the said period and no student other than an allottee by LBS Centre could have been admitted under the government quota, by the management of the College. The petitioners in W.P.(C) R.P.No.290 of 2017 4 No.3269/2017 were the students who were admitted by the management of the College before the expiry of the period for allotment of students under the Government merit quota, by the management as management quota candidates. Those aspects revealed from the pleadings in W.P.(C)No.3269/2017 and from Ext.P10 judgment were taken into for the purpose of considering the claims and contentions in W.P.(C)No.3269/2017. The fact that the judgment in W.P.(C)No.25203/2016 has become final and that the petitioners in W.P.(C)No.3269/2017 were students who were admitted to the very same B.Pharm course before the expiry of the period for allotment of Government merit quota, by the management as management quota candidates, even after an unsuccessful challenge against the right of LBS to allot students after 15.8.2016 or 19.8.2016 and therefore, could not have admitted them to the said course prior to the expiry of the said period, were duly taken into consideration at the time of its disposal rather, for dismissing it. In the contextual situation we also R.P.No.290 of 2017 5 referred to the decision of the Hon'ble Apex Court in W.P. (C)No.677/2016 dated 23.01.2017. The relevant portion of the said judgment viz. paragraph 15 was quoted by us in the judgment in W.P.(C)No.3269/2017 and the said relevant paragraph reads thus: “15. The question before this Court is not who is to be blamed for the present state of affairs- whether it is the students or the college or the State of Chhattisgarh. The question is really whether the rule of law should prevail or not. In our opinion, the answer is unambiguously in the affirmative. The College and the State of Chhattisgarh have not adhered to the law with the result that the petitioner became a victim of circumstances giving him a cause of action to proceed against the College and the State of Chhattisgarh being a victim of their maladministration. The plight of the petitioner is unfortunate but it cannot be helped”. Following the the judgment of the Hon'ble Apex Court in W.P.(C)No.677/2016 and taking into account the indisputable facts obtained from the pleadings in W.P.(C) No.3269/2017 and Ext.P10 judgment viz., the judgment in W.P.(C)No.25203/2016 we found that the judgment in W.P. (C)No.677/2016 squarely applicable to the factual situation. Going by the decision of the Hon'ble Apex Court while considering such matters, the question as to who had R.P.No.290 of 2017 6 committed the blameworthy action is irrelevant and the crucial question is whether there occurred non-adherence to law in the matter of admission. We had also taken note of the fact that the case involved in W.P.(C)No.677/2016 was also a case where the petitioner therein took up a contention that the blameworthy action was committed by the management of the College and therefore the petitioner who was admitted to a course could not be put to suffer for that as he himself was the victim of maladministration. The Apex Court held that in said circumstances though the plight of the petitioner was unfortunate so long as his admission was the outcome of non-adherence to the law in the matter of admission, it could not be helped. Therefore what matters in matters like this is whether the admission was an outcome of non-adherence to the law in the matter of admission or not. It was such consideration that culminated in the dismissal of W.P.(C)No.3269/2017. The petitioner who is the Chairman of the said College which admitted those students who were the petitioners in W.P.(C) R.P.No.290 of 2017 7 No.3269/2017, now seeks for the review of the said judgment. 3. We have heard the learned counsel for the review petitioner, the learned counsel appearing for the Admission Supervisory Committee and the learned counsel appearing for the Kerala University for Health Sciences. 4. Before considering the grounds for review it will only be proper and profitable to consider the binding decisions of this Court as also of the Hon'ble Apex Court laying down the principles to be followed while considering the review applications. True that in **Sathy v. Thara [2007** **(2) KLT SN 13 (C.No.19)]** this court held that an error to be one apparent on the face of the record, need not be one limited to errors of fact but could extend to errors of law as well. If the mistake is apparent, be it of law or fact, on a perusal of the records, then an application for review would lie and the court may also reopen its judgment, if a manifest wrong had been done. In **Thungabhadra Industries v. Government of Andhra Pradesh rep. by the Deputy** R.P.No.290 of 2017 8 ## **Commissioner of Commercial Taxes, Anantapur [AIR** **SC 1964 1372]** the Hon'ble Apex Court held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent errors. Review is maintainable only if an apparent error or a mistake on the face of the judgment is made out, or that it should be shown that the new pleas are based on any matter, which could not, with due diligence, discover and produce earlier at the appropriate stages of the case. (See the decision of the Hon'ble Apex Court in Dr. Mohd. Yasin v. University of Kashmir [AIR 1974 SC 2341]. S **ow Chandra Kante v. Sheikh Habib [(1975) 1 SCC 674]** is to the effect that once an order has been made a review thereof must be subject to the rules and practice of the court and cannot be lightly entertained. A review of a judgment is a serious step and resort to it, is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Going by the decision of the Apex Court in **M/s. Northern India Caterers (India) Ltd.** R.P.No.290 of 2017 9 **v. Lt. Governor of Delhi [AIR 1980 SC 674]** if the view adopted by the court in the original judgment is a possible view, having regard to what the records states then it is difficult to hold that there is an error apparent on the face of the record. Therefore bearing in mind the legal principles enunciated in the said decisions, we will proceed to consider whether the review petitioner has made out a case for review of the judgment in W.P.(C)No.3269/2017. 5. The grounds raised in the review petition are as hereunder: “ A. A perusal of the judgment will show that the Bench has considered the questions raised in the light of the judgment of this Court evidenced by Ext.P10. The case advanced in the said writ petition was regarding the authority of LBS in making allotment beyond the schedule provided in the agreement. While considering the said question, this Court held that the agreement having not been presented before the Admission Supervisory Committee as provided in the agreement, the said agreement is lacking approval by the Committee. Therefore at best, it can only be construed that there was no agreement between the management and the Government in the matter of allotment and seat sharing. Therefore, absence of approval of the agreement, at best may indicate that there was no agreement at all and it will not vitiate and admission when the candidates admitted are otherwise qualified and is possessing the requisite eligibility in securing admission. This part of the admission process has never been considered by the Division Bench and the bench proceeded on the basis that the admission of R.P.No.290 of 2017 10 students other than those allotted by LBS is vitiated merely because they are not candidates allotted under the Government quota. The contentions advanced on behalf of the committee and accepted by the Bench through the judgment in review is apparently contradictory and divergent. As such, the finding arrived by the Bench is error apparent on the face of records, it warrants review of the same. B. The proceedings were initiated by the Committee chaired by another person and the order impugned has been passed by his successor without hearing the review petitioner at any given point of time. If the order passed on 31.12.2016 is the continuation of the earlier proceedings, then the successor in office ought to have heard the review petitioner as the arguments were advanced before the predecessor based on the available material. On the other hand, the order passed on 31.12.2016 (Ext.-P8) is a fresh order unconnected to the series of orders passed earlier, then the order passed as per Ext-P8 is without giving an opportunity to explain the process of admission eligibility criteria and the right of the management. In either case, the order cannot be sustained. This crucial aspect has not been considered by the Bench presumably for the reason that the said sequence was not brought to the notice of the court as the writ petitioners were unaware of the said sequence. However, having affirmed the order, the same will stand against the consideration of the issue in view o the judgment of this Court affirming Ext.P8, which in fact is an error apparent on the face of the records, resulting in miscarriage of justice, which warrants review of the same, as the process of dispensation of justice cannot be prevented because of a judgment rendered without considering all relevant aspects. Hence the judgment requires review to meet the ends of justice. C. The judgment in its entirety proceeds on the basis that by not admitting students allotted by LBS all other admissions are vitiated. As a matter of fact, only two candidates were not given admission as advised by the LBS and other have gone to other institutions following higher option. Those two candidates were compensated in a R.P.No.290 of 2017 11 proceedings before the Committee. As such the admissions made can only be considered as admissions in the lapsed seats. This aspect of the matter has not been considered in the judgment in the right perspective. As such the judgment requires reviewed otherwise the judgment will result in miscarriage of justice.” 6. In the context of the contentions it is relevant to note the contentions raised by the review petitioner herein as the petitioner in W.P.(C)No.25203/2016 and also the contentions raised by the students who were admitted in the College, in W.P.(C)No.3269/2017. We have already adverted to those contentions hereinbefore. Essentially the essence of all the aforesaid grounds were considered in the light of the decisions referred (supra) while passing the judgment in W.P.(C)No.3269/2017. It is not the case of the petitioners in W.P.(C)No.3269/2017 that they were admitted not against the 50% vacancies which were to be filled up by candidates from LBS, as candidates under the management quota. But it is their case that after 15.7.2016 or after 19.7.2016 those unfilled seats under the Government merit quota were available to be filled up by the management as those R.P.No.290 of 2017 12 vacancies were lapsed to the management. In fact, such a contention is impermissible to be raised by the review petitioner herein as also the petitioners in W.P.(C) No.3269/2017 in the light of Ext.P10 judgment in W.P.(C) No.25203/2016. The review petitioner allowed the said judgment viz., Ext.P10 judgment, to become final. Having held the admission of those students as admissions effected without adhering to law, in such circumstances, and in view of Ext.P10 judgment we further held that the students who were admitted against those vacancies by the 5[th] respondent college, could not be heard to contend that even if they were illegally admitted against those vacancies those contemptuous action was committed by the management and therefore they could not be penalised for that. As noticed hereinbefore in the light of the decisions of the Apex Court in WP(C)No.677/2016 when the Hon'ble Apex Court in unambiguous terms held that the question who had committed the blameworthy action is irrelevant and the crucial question is whether there occurred non-adherence R.P.No.290 of 2017 13 to law in the matter of admission. We had considered only that question. Having held that the petitioners were students admitted to B.Pharm course before the expiry of the period for allotment students under the Government merit quota, that too, after the judgment in W.P.(C) No.25203/2016 we held that the contentions of the petitioners-students who were admitted against such vacancies that they should not be put to suffer for the same could not be accepted. It is such consideration that ultimately culminated in our judgment in W.P.(C) 3269/2017. The review petitioners cannot, therefore, be permitted to overreach the impact and effect of the said decision and also cannot be permitted to justify the admissions effected against such seats, raising the contention that they were lapsed to the management. On a careful consideration of the aforementioned grounds raised by the petitioners, in the light of the decisions referred (supra) we have no hesitation to hold that there are absolutely insufficient to compel us to exercise the review R.P.No.290 of 2017 14 jurisdiction. In other words, they did not bring out an error apparent on the face of the record. That apart in our view, grounds 'A' to 'C' are nothing but contentions raised as if it is an appeal. Being the petitioner in W.P.(C)No.25203/2016 who allowed the judgment thereon, to become final the review petitioners could not be heard to justify admissions effected against the vacancies set apart for allotment under Government merit quota by the LBS before the expiry of the period permissible for such allotment. The grounds do not fall within the permissive grounds which could be taken in a review petition and in such circumstances this review petition is liable to fail and accordingly it is dismissed. Sd/- **C.T. RAVIKUMAR** **JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/