Kannur Medical College, Anjarakkandi v. Admission Supervisory Committee for Professional Colleges in Kerala, Kerala University of Health Sciences, and Commissioner for Entrance Examinations

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940 ## **W.P.(C).No. 25895 of 2018** ## **PETITIONER(S):** THE PRINCIPAL, KANNUR MEDICAL COLLEGE, ANJARAKKANDI, KANNUR, KERALA 670 612. BY ADV.SRI.GEORGE POONTHOTTAM ## **RESPONDENT(S):** 1. THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, PRASANTHI BUILDING, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 001, REPRESENTED BY ITS CHAIRMAN. 2. THE KERALA UNIVERSITY OF HEALTH SCIENCES, MULANGUNNATHUKAVU, MEDICAL COLLEGE P.O, THRISSUR 680596, REPRESENTED BY ITS REGISTRAR. 3. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, GOVERNMENT OF KERALA, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM 695 001. R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES R2 BY ADV. SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCES R3 BY SPL. GOVERNMENT PLEADER SRI. M.A. ASIF. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25895 of 2018 (J) APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMMUNICATION NO. MCI-37(1) RECG. 12(UG)/2016-MED./DATED 07.05.2018 ISSUED BY THE MCI EXHIBIT P2 TRUE COPY OF THE ORDER ASC 100/16/MBBS/KMC DATED 09.09.2016 PASSED BY THE 1ST RESPONDENT COMMITTEE EXHIBIT P3 TRUE COPY OF THE ORDER ASC 100/16/MBBS/KMC DATED 15.09.2016 PASSED BY THE 1ST RESPONDENT COMMITTEE EXHIBIT P4 TRUE COPY OF THE ORDER ASC 100/16/MBBS/KMC DATED 02.10.2016 PASSED BY THE 1ST RESPONDENT COMMITTEE EXHIBIT P5 TRUE COPY OF THE ORDER DATED 06.10.2016 IN WPC.NO. 32186/2016 PASSED BY THIS HON'BLE COURT EXHIBIT P6 TRUE COPY OF THE ORDER ASC 100/16/MBBS/KMC DATED 14.11.2016 PASSED BY THE 1ST RESPONDENT COMMITTEE EXHIBIT P7 TRUE COPY OF THE AWARD DATED 10.07.2018 PASSED BY THE LEGAL SERVICE AUTHORITY EXHIBIT P8 TRUE COPY OF THE AWARD PASSED BY THE LEGAL SERVICE AUTHORITY EXHIBIT P9 TRUE COPY OF THE ORDER/LETTER DATED 25.07.2018 PASSED BY THE 1ST RESPONDENT COMMITTEE EXHIBIT P10 TRUE COPY OF THE COMMUNICATION/STATEMENT SUBMITTED BEFORE THE 1ST RESPONDENT COMMITTEE BY THE PETITIONER EXHIBIT P11 TRUE COPY OF THE ORDER DATED 25.07.2018 ISSUED BY THE 1ST RESPONDENT COMMITTEE EXHIBIT P12 TRUE COPY OF THE ORDER DATED 13.07.2018 IN WPC.NO. 23049/2018 PASSED BY THIS HON'BLE COURT EXHIBIT P13 TRUE COPY OF THE NOTIFICATION NO. CEE/5500/2017/KEAM-2018/TA1 DATED 23.07.2018 ISSUED BY THE 3RD RESPONDENT - EXHIBIT P14 TRUE COPY OF THE COMMUNICATION NO.2017/13462/ACI/MED/A3 DATED 27.07.2018 ISSUED BY THE 2ND RESPONDENT UNIVERSITY. - EXHIBIT P15 : TRUE COPY OF THE COMMUNICATION NO.2017/13462/ACI/MED/A3 DATED 27/07/2018 ISSUED BY THE 2ND RESPONDENT UNIVERSITY. - EXHIBIT P16 TRUE COPY OF THE COMMUNICATION/REPLY REF:KMC/KUHS/2018-19 AFFILI/2 DATED 28.07.2018 SUBMITTED (WRONGLY TYPED AS 28.7.2019) TO THE 2ND RESPONDENT UNIVERSITY BY THE PETITIONER. WP(C).No. 25895 of 2018 (J) EXHIBIT P17 TRUE COPY OF THE AFFIDAVIT DATED 18.01.2018 FILED BY ONE OF THE STUDENTS BEFORE THE GOVERNMENT. //TRUE COPY// SD/- P.S. TO JUDGE ## **C.R.** ## K. SURENDRA MOHAN & SHIRCY V, JJ. - - - - - - - - - - - - - - - - - W.P. (C) No. 25895 of 2018 - - - - - - - - - - - - - - - - - Dated this the 1[st] day of August, 2018 ## JUDGMENT ## Surendra Mohan, J. The petitioner, a Private Self Financing Medical College, is before us challenging Ext.P11 order of the Admission Supervisory Committee for professional colleges in Kerala, the first respondent herein. As per Ext.P11 order, the Committee has recommended to the Kerala University of Health Sciences, the second respondent herein, to withdraw the affiliation/recognition of Kannur Medical College for the academic year 2018-2019. 2. The College was established in the year 2006 after obtaining necessary permissions from all the authorities, with a sanctioned intake of 100 students. Subsequently, it appears that an additional intake of 50 students was granted, making the present sanctioned intake 150, as evident from Ext.P1. The admissions made W.P.(C).25895/2018. 2 by the petitioner for the academic year 2016-2017 had become the subject matter of litigation before this Court as well as the Supreme Court since, the admissions had been found to be unsustainable and were set aside by the first respondent Committee. The action was held to be in order by this Court as well as by the Supreme Court. Thereafter, an attempt to regularize the admissions was made by the State by promulgating an Ordinance. The Apex Court deprecated the action of the State and has stayed the Ordinance. It has also been ordered that the students who were admitted, shall not take any benefit by virtue of the Ordinance. In other words, the students who were admitted by the petitioner College for the academic year 2016-2017 are left in deep waters now. Their future remains uncertain. Therefore, many of the students have sought for the return of the fees paid by them. 3. In the above context, there have been a number of complaints against the petitioner College alleging that amounts far in excess of the fee that they were W.P.(C).25895/2018. 3 permitted to charge had been extracted from the students. Such complaints were pending before the first respondent Committee. As per Ext.P9 proceedings dated 25.7.2018 the first respondent Committee scheduled a hearing on 27.7.2018 for the purpose of considering the complaints made by the students. The Principal in charge of the Medical College was also directed to appear before the Committee. By Ext.P10, the Principal requested for an adjournment of the hearing. However, the request was declined, the complaints were considered and Ext.P11 order was passed recommending that the affiliation/recognition of the Medical College for the academic year 2018-2019 be withdrawn. It is aggrieved by the said order of the first respondent that this writ petition is filed. 4. According to Adv. George Poonthottam who appears for the petitioner, the College is one that has been granted permission to conduct MBBS Course by the Medical Council of India and Central Government, as evident from Ext.P1. Therefore, the College has all the infrastructural W.P.(C).25895/2018. 4 and other facilities stipulated by law for the conduct of MBBS Course. What was pending consideration of the first respondent was only whether the complaints put forward by the students who were admitted to the College during the year 2016-2017 were well founded or not. It was with respect to the final hearing of the said complaints that a request for postponement of the hearing date was made. While rejecting that request, the first respondent had no power or authority to recommend cancellation of the affiliation/recognition of the petitioner College. If at all, such a course was in the contemplation of the first respondent, it is contended that, the College ought to have been specifically put on notice regarding the same and heard on the said aspect. The learned counsel places reliance on paragraph 96 of the decision of this Court in Kerala Self Financing Dental College Managements Consortium v. State of Kerala (2017 (4) K.L.T. 809) to point out that it was necessary for the College to have been heard before an order under Section 8(3) of the Medical W.P.(C).25895/2018. 5 Education (Regulation and Control of Admission to Private Medical Institutions) Act, 2017 (Kerala) (hereinafter referred to Act 15 of 2017) was passed. Therefore, it is contended that, the impugned order is liable to be interfered with and set aside by this Court. It is further pointed out that, various questions relating to the admissions made during the academic year 2016-2017 are still pending consideration of the Apex Court and that the issues have not become final. Therefore, placing reliance on the said incidents, to recommend withdrawal of affiliation of the petitioner College, according to the learned counsel, is unsustainable. It is further contended that, since allotment of students during the current academic year is being done by the third respondent uniformly to all colleges on the basis of the NEET ranking, no confusion as in the previous year would occur. 5. Per contra, Adv. Mary Benjamin points out that the conduct of the petitioner College was found to be wholly unjustified inasmuch as fees far in excess of what W.P.(C).25895/2018. 6 was permissible had been collected during the previous academic year. Such excess collection can only be described as collection of capitation fee, specifically prohibited by the Apex Court. In view of the illegal conduct of the College, action had been taken against the College and the students admitted during the previous academic year and their admissions have been set aside. The action has been confirmed by the Apex Court also. A subsequent attempt to set right matters through a legislative exercise of promulgating an Ordinance has also been interfered with by the Apex Court and an order of stay has been granted. The learned counsel relies on the order dated 5.4.2018 of the Apex Court in Writ Petition (Civil) No. 231 of 2018 in support of the above contention. 6. It is further contended that, the fate of the students, who had acceded to the unreasonable demands of the petitioner and were made to part with huge amounts of money, has also been taken into account by the first respondent while passing Ext.P11. Despite the grant of W.P.(C).25895/2018. 7 innumerable adjournments and opportunities, it is pointed out that the College had not co-operated or showed any inclination to settle the issues by returning the money that was paid. It was after a number of adjournments that the matter was finally posted on 27.7.2018 with a specific direction to the Principal to appear. Since the said direction was also not complied with, it is contended that the first respondent was left with no other alternative except to pass the impugned order Ext.P11. It is contended that, since the College has been indulging in collection of capitation fee, the recommendation made as per Ext.P11 is fully justified. 7. The learned Special Government Pleader who represents the third respondent supports the contentions of the Standing Counsel for the first respondent. It is contended that, substantial amounts have been collected from the students by the College and that the amounts are not being returned. Consequently, the students are made to run from pillar to post. They are also not able to pursue W.P.(C).25895/2018. 8 their studies in some other institution for want of funds. 8 Adv. P. Sreekumar, the Standing Counsel for the second respondent University, points out that the petitioner had settled the claims of some of the students by paying the amounts collected from them. Such amounts were also far in excess of what they could have legitimately collected as fees. Therefore, it is contended that there is ample evidence in the present case regarding collection of capitation fee. In view of the above, the action taken by the first respondent is fully justified. At this juncture, the counsel for the petitioner hastens to point out that the College has already settled the claims of nine students. He also places reliance on Exts.P7 and P8 where settlements have been arrived at with some of the students before the Lok Adalat. Therefore, it is contended that, the claims of all the students would be settled in due course. 9. We have narrated the sequence of events that led to the passing of Ext.P11 in the present case for the purpose of putting in perspective the context in which the W.P.(C).25895/2018. 9 impugned order, Ext.P11, has been passed. It is not disputed that, the admissions made by the petitioner for the academic year 2016-2017 have been found to be illegal and set aside. Therefore, the admissions had been made flouting the Rules that stipulated the manner in which students ought to have been admitted. It is also not disputed that there are a number of complaints pending before the Committee from the students alleging collection of amounts far in excess of the fees stipulated and seeking return of the amounts paid. It is not disputed that the claims of such students have not been settled, till date. According to the students, the petitioner has collected amounts far in excess of what was permitted to be collected as fees. It is clear therefore that, the admissions for the year 2016-2017 is in a total mess. The Petitioner has not been able to clear the mess and to sort out the issues till today. In the above context, the 2[nd] paragraph of the impugned order Ext.P11 is relevant. It reads as under: W.P.(C).25895/2018. 10 "In the above circumstances, 9 students of the Kannur Medical College (2016-17 batch) filed complaints before the Admission Supervisory Committee for directing the Kannur Medical College to return the fee remitted at the time of admission. The above complaints would reveal that in most of those cases the college had collected huge amounts i.e. amount ranging from Rs.22 lakhs to Rs.41.17 lakhs, from the students, towards fee. The annual tuition fee as per the prospectus was Rs.10 lakhs. The collection of such huge amount was in excess of the 1[st] year tuition fee, and could be construed as collection of capitation fee as per Section 6(5) of the "Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 (Act 19 of 2006) and also under Section 8(3) of the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Act, 2017 (Act 15 of 2017)." As per the direction issued by the Committee, the Kannur Medical College had paid almost the entire amount to the above students in above cases." The Standing Counsel for the second respondent has placed emphasis on the observation of the first respondent that in W.P.(C).25895/2018. 11 the case of the students referred to therein, the entire amount collected had been paid by the College. Therefore, it is contended that, there is evidence of the fact that amounts far in excess of the prescribed fees had been collected by the College. 10. Be that as it may, the fact remains that the complaints preferred by the 28 students have been pending before the first respondent Committee. The 3[rd] paragraph of Ext.P11 details the number of postings given in respect of the said complaints and reads as under: "Thereafter 28 students filed complaints for directing the college to return the fee collected from them by the college. In the above cases also, the claims put forward by the complainants were ranging from Rs.20 lakhs to Rs.50 lakhs. In certain cases, the college had collected bank guarantee also for securing the future payments. In most of those cases also, the college collected amount much more than the 1[st] year fee and thereby the collection of such huge amount could be construed as collection of capitation fee. In the above case, the Committee passed an Interim Order dated 25.06.2018 directing the college to produce the DD for the undisputed amount and the W.P.(C).25895/2018. 12 matter was posted for hearing on 12.06.2018, 19.06.2018, 25.06.2018, 02.07.2018, 10.07.2018 and 19.07.2018. On 19.07.2018, the learned counsel for the Medical College requested for time and accordingly, the complaints were adjourned to 27.07.2018." 11. It is evident from Ext.P11 that the petitioner had not complied with the direction to pay at least a portion of the amount that was claimed by the students. 12. In the above circumstances, the first respondent Committee has felt that it was necessary to recommend to the University to withdraw the affiliation/recognition granted to the petitioner College. The direction to withdraw the affiliation has been issued taking into account the conduct of the petitioner of admitting students in violation of the admission procedure, flouting the stipulations regarding the charging of fees and even after being granted repeated opportunities, of not returning the amounts so collected. It is clear therefore that, the petitioner has not complied with the Rules that stipulate the grant of admissions and charging of fees as W.P.(C).25895/2018. 13 well as the directions of the first respondent. 13. The contention of the counsel for the petitioner is that, since the first respondent Committee was considering only the genuineness of the complaints made by the students, it had no power to recommend withdrawal of the affiliation/recognition of the College. In the above context, it is necessary to examine the scope of Section 8(3) of Act 15 of 2017, the relevant provision applicable. Section 8 lays down the powers and functions of the Committee. Sub Sections (3), (4) and (5) being relevant in the context are extracted hereunder: "(3) The fee determined by the Committee shall be applicable to a student who is admitted to a private medical educational institution in that academic year and shall not be revised till the completion of his course in the said institution or University. No private medical educational institution shall collect a fee amounting to more than one year's fee from a student in an academic year. Collection of more than one year's fee in an academic year shall be construed as collecting of capitation fee and shall be liable to be proceeded against. W.P.(C).25895/2018. 14 (4) The Committee may, if it is satisfied that there has been any violation by such institution of the provisions of this Act or the rules made thereunder regarding admission or fees, it may recommend to the Government to take the following actions against such institution, namely:- (a) impose a monetary fine up to ten lakh rupees on the institution together with interest thereon at the rate of twelve per cent per annum which shall be recovered as if it were an arrear of public revenue due on land; (b) declare admission made in respect of any or all seats in a particular institution made in contravention of the provisions of this Act or the rules made thereunder invalid, whereupon the institution shall forthwith cancel the admission of such candidate and the concerned University shall cancel the enrollment of such student and cancel his results of any examination in which the candidate has already appeared; (c) order the institution to refund to the student within such time as specified in the order, any amount received by the institution in excess of the fees fixed by the Committee or any amount received by way of capitation fee or any amount received for profiteering; Provided that if the institution fails to refund the amount within the specified time to the student, the W.P.(C).25895/2018. 15 same shall be recoverable along with interest thereon at the rate of twelve per cent per annum as if it were an arrear of public revenue due on land and paid to the student; (d) order the institution to stop admission or reduce the sanctioned intake in any medical course for such period as it may deem fit; (e) recommend to the University or the appropriate authority to withdraw the recognition of the institution; (f) any other course of action, as it deems fit. (5) The Committee shall ensure that the admission in an institution is done in a fair and transparent manner." 14. An examination of Section 8(3) shows that collection of more than one year's fee in an academic year is to be construed as collection of capitation fee attracting proceedings against the College. Sub Section (4) sets out the action that could be initiated against an erring College. The power of the first respondent Committee is recommendatory in nature and includes under Section 8(4) (c), the power to order the institution to refund to the students, within such time to be specified in the order, any W.P.(C).25895/2018. 16 amount received by the institution in excess of the fee fixed by the Committee or any amount received by way of capitation fee or any amount received for profiteering. As per the proviso, if the institution fails to refund the amount within the specified time, the same shall be recoverable with interest thereon at 12% per annum as if it were an arrear of revenue due on land and paid to the student. Clause (d) empowers the Committee to order the institution to stop admission or reduce the sanctioned intake for a period to be specified. Section 8(4)(e) empowers the first respondent Committee to recommend to the University or the appropriate authority to withdraw the recognition of the University. Therefore, where the institution fails to comply with the direction of the Committee to pay the amounts collected from the complaining students, the Committee is empowered to recommend to the University to withdraw the recognition of the institution. No further opportunity of being heard is contemplated before the said course of action is to be adopted. A perusal of the provisions leaves W.P.(C).25895/2018. 17 no doubt in our minds that what has been provided by Sub Clauses (c), (d), (e) and (f) of Section 8(4) of Act 15 of 2017 are the different courses of action that could be adopted or the orders that the first respondent Committee is empowered to pass in the circumstances referred to in Section 8(4). Such orders are consequential orders that are required to be passed in the proceedings pending before the first respondent while discharging its functions under Section 8(4) of the Act. Section 8(5) further makes it obligatory on the Committee to ensure that the admission in an institution is done in a fair and transparent manner. The above being the scope of Section 8, it is held that the first respondent Committee had sufficient powers to issue the recommendation as per the impugned order Ext.P11. It is also held that, no further opportunity before adopting any of the courses of action stipulated by the various sub clauses of Section 8(4) of the Act is necessary. The institution having been put on notice regarding the complaints pending before it, and repeated opportunities W.P.(C).25895/2018. 18 having been given to comply with the direction already issued by the Committee, we are satisfied that there has been no violation of the principles of natural justice, as alleged. 15. Considering the conduct of the petitioner described above, we are not satisfied that any further opportunity after putting the College on notice regarding the proposal to recommend withdrawal of their affiliation ought to have been granted. The first respondent has sufficient powers to recommend withdrawal of the affiliation in cases where a College is found to have flouted the rules stipulated regarding the grant of admission and extraction of fees. We are not satisfied that without clearing the mess created by the College for the academic year 2016-2017, permission to admit fresh students should be granted to the college, to face a similar situation. It is in the interests of justice that further admissions are deferred, until the whole state of affairs is sorted out and the College purged of its misdeeds. We are not inclined to exercise our W.P.(C).25895/2018. 19 discretionary jurisdiction under Article 226 of the Constitution in favour of the petitioner who has been shown to have scant respect for the law. For the foregoing reasons, we find no grounds to interfere with the impugned order or to grant any of the reliefs prayed for. The writ petition is dismissed. Sd/- K. SURENDRA MOHAN JUDGE Sd/SHIRCY V JUDGE sb