Kerala Private Medical College Management Association v State of Kerala & Ors

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 4[TH] DAY OF APRIL 2022 / 14TH CHAITHRA, 1944`** ## **`WP(C) NO. 10536 OF 2022`** ## **`PETITIONER/S:`** ``` KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT ASSOCIATION, HAVING ITS REGISTERED OFFICE AT MALABAR MEDICAL COLLEGE CAMPUS, MODAKKALLUR, ATHOLI (PO), KOZHIKODE REPRESENTED BY ITS GENERAL SECRETARY, ANIL KUMAR V., PIN - 673315 BY ADVS. P.MARTIN JOSE THOMAS P.KURUVILLA P.PRIJITH R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S. S.SREEKUMAR (SR.) ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (G, J AND P) DEPARTMENT, 3RD FLOOR, ANNEX-II, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM , PIN - 695001 ``` ``` WP(C) NO. 10536 OF 2022 ``` ``` 2 ``` ``` 4ADMISSION SUPERVISORY / FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES, KERALA, T.C. 15/1553-4, PRASANTHI BUILDINGS, M P APPAN ROAD, VAZHUTHACAUD THIRUVANANTHAPURAM REPRESENTED BY ITS CHAIRMAN., PIN - 695014 BY ADVS. ADVOCATE GENERAL OFFICE KERALA SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES SRI.P.G.PRAMOD, GOVERNMENT PLEADER(GP-50) ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON04.04.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` WP(C) NO. 10536 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** The Kerala Private Medical College Management Association, the petitioner herein, claims that they are an association formed to champion the cause of private Medical Colleges in the State. They have approached this Court seeking directions to the respondents 3 and 4 to grant time for fresh registration in the NRI quota to eligible students before the commencement of Mop-up counseling. 2. Brief facts are as under: The petitioner contends that, in the Medical Colleges owned by the association members, MBBS courses as well as various Post Graduate Courses are conducted by the National Testing Agency. Pursuant to the publication of the result of National Eligibility cum Entrance Test (NEET), the 3rd respondent published the results/rank list for the State Quota based on the NEET i.e., KEAM 2021 for the Academic year 2021-2022. Immediately thereafter, Exhibit P2 rank list for eligible candidates in the NRI quota was published. The said rank list, consisting of about 618 rank holders, got exhausted after two rounds of counseling. Despite the exhaustion of the Rank List, about 57 seats in the NRI quota are lying vacant in the member colleges. ``` WP(C) NO. 10536 OF 2022 ``` ``` 4 ``` 3. The fees for the various Medical Colleges conducted by the members of the petitioner association is fixed by the 4th respondent after taking into account the fee receivable from the NRI Quota as well. If the NRI seats remain vacant after counseling, the said seats would revert to the State Merit Quota seats resulting in huge financial loss to the members of the association. 4. The petitioner contends that numerous eligible candidates were unable to exercise their option due to the restrictions imposed due to the pandemic. In the said circumstances, the petitioner submitted Ext.P3 representation requesting to invite fresh applications to fill up vacant seats in the NRI Quota before the Mop up allotment. However their request was not heeded to. 5. According to the petitioner, this Court as well as the Apex Court held that the fee prescribed and collected from NRIs, in excess of the fee prescribed for non-NRI candidates, are to be utilized for benefiting the students from economically weaker sections of the society. In view of the above salutary reason, it is only just and proper that the entire NRI Quota seats are filled up or else, it would be financially disastrous for all the member colleges. The petitioners rely on judgments rendered by this Court on early occasions in Exhibits P5 and P6 to substantiate their contentions. ``` WP(C) NO. 10536 OF 2022 ``` ``` 5 ``` ## It is in the afore backdrop that the petitioner is before this Court seeking the following reliefs: “(i) Issue a writ of mandamus or such other writ, order or direction directing the respondents 3 and 4 to grant time for fresh registration in NRI Quota to the eligible students before commencement of the Mop-up counseling. (ii) Issue a writ of Mandamus or such other writ, order or direction directing the 3rd Respondent to consider and pass orders in Exhibit P3 representation within a time limit to be fixed by this Hon;ble Court. (iii) Permit the members of the Petitioner association to admit NEET qualified eligible students who produce the necessary documents in NRI Quota before the cut of date stipulated by the Kerala University of Health Sciences vide Exhibit P4, in the event the Respondents does not invite fresh applications in the NRI Quota. (iv) Permit the members of the petitioner Association to collect fees at the rate prescribed for NRI Quota from students admitted in the vacant NRI Quota seats in the event the respondent Nos. 3 and 4 does not grant time for fresh registration in NRI Quota to the eligible students before commencement of the Mop-up counseling.” 6. When this matter came up on 29.03.2022, this Court, after considering the facts and circumstances, issued the following order. The relevant portion of which reads as follows:- “3. The learned Senior counsel submitted that the KUHS has issued a circular fixing the cut off date for admission for undergraduate courses as 04.04.2022. According to the learned counsel, in view of COVID-19 pandemic, several eligible candidates from other countries ``` WP(C) NO. 10536 OF 2022 ``` ``` 6 ``` were unable to submit the required documents for admission to the NRI quota. According to the learned counsel, during previous years, this Court taking note of the fact that the amount received from the candidates under the NRI quota has to be utilised for the purpose of subsiding the fees for weaker sections of the community had directed the Government to consider the extension of time for candidates who could not presently apply under the NRI quota since there are unfilled seats and directions were issued to consider the extension of time before the 3rd allotment. According to the learned counsel, if the NRI seats remain unfilled, the same would be converted to State merit quota seats and that would be financially disastrous to the Private Medical Colleges. 4. In response, the learned Senior Government Pleader submits that even as per the category list for the NRI quota seats published by the Commission of Entrance Examination, the total number of NRI quota seats is 614. The total NRI seats in the State of Kerala is 358 out of which 300 seats have been filled up prior to the second allotment. All that remains is 58 seats. It is further submitted that about 314 students still remain and they would be able to exercise their option from 27.03.2022 to 30.03.2022. A clear picture would be available only thereafter. 5. The learned senior counsel submits that the submission made by the learned Government Pleader may not be entirely correct. It is contended that the entire list of students in the category list for NRI seats have been exhausted. According to the learned Senior counsel, for the time being, the petitioner would be satisfied if directions are issued to the 3rd respondent to consider Ext.P3 representation in the light of observations made by the Division Bench in Exts P5 and P6 and take a decision.” ``` WP(C) NO. 10536 OF 2022 ``` ``` 7 ``` 7. Today when the matter was taken up, it is submitted by the learned Senior Counsel appearing for the petitioner that in pursuance to the orders passed by this Court, the request made by the petitioner was considered and an order was passed on 31.03.2022, which reads as follows: “As per the direction of the Hon’ble High Court, the Commissioner for Entrance Examination has examined your representation in the light of Exhibits P5 and P6 judgments of the Hon’ble High Court. During this year, the applicants had been given sufficient time to apply for the NRI quota. After two phases of allotments there are about 300 students remaining in the NRI category list and awaiting for allotment. The mop up counselling process is going on and the allotment is scheduled to be published on 02.04.2022. As per MCI schedule, the admission to MBBS course has to be completed before 05.04.2022.” 8. I have heard Sri.S.Sreekumar, the learned Senior Counsel as instructed by Sri. Thomas P. Kuruvila, the learned counsel appearing for the petitioner and Sri. P.G. Pramod, the learned Government Pleader. 9. The learned Senior Counsel would urge that the rank holders bearing Rank Nos. 615, 616 and 618 were allotted seats in various Medical Colleges, even prior to filing of the writ petition. Even thereafter 57 seats still remain vacant. Relying on the law laid down by the Apex Court in **P.A.Inamdar v State of Maharashtra** [(2005) 6 SCC 537], it is submitted that the amount of money collected from NRIs should be utilized for ``` WP(C) NO. 10536 OF 2022 ``` ``` 8 ``` benefiting students from economically weaker sections of society, whom the educational institution may admit on a subsidized fee. In that view of the matter, the respondents ought to have extended the period and granted some more time to fill up the vacant NRI quota seats. Reliance is also placed on Exhibit P5 and P6 judgements rendered by this Court to hammer home his contention. 10. Sri P.G. Pramod, the learned Government Pleader has very strenuously opposed the prayer. According to the learned Government Pleader, the respondents have acted strictly in terms of provisions of the prospectus and ample time was granted to the Colleges to fill up the NRI quota seats. In order to highlight the sequence of events, it is submitted that the online application for admission to Medical Courses was invited for the period from 01.06.2021 to 21.06.2021. Later, the period was extended till 24.06.2021. All the qualified candidates including the persons in the reserved category, PwD category and NRI quota were permitted to exercise their options. Later, notification dated 25.06.2021 was issued granting opportunity to the candidates for effecting corrections. The time for rectification of the defects was granted from 11.09.2021 to 17.09.2021. This was extended for submission of new documents from 30.10.2021 to 08.11.2021. This date was further extended from 04.12.2021 to 10.12.2021. ``` WP(C) NO. 10536 OF 2022 ``` ``` 9 ``` Later, the Government passed orders permitting the NRI candidates to cure defects in attestation till 31.03.2022. It is further submitted that as per the guidelines issued by the National Medical Commission, the admission will have to be completed before 05.04.2022, i.e. tomorrow. The classes have already commenced and according to the learned Government Pleader, it could not be possible to extend the date. The learned Government Pleader also invited the attention of this Court to Clause No. 5.5.4 of the prospectus which reads as follows: “5.5.4 If any seat, in any special reservation quota including PwD quota, is left unavailed by the candidates belonging to that particular category, it will go to the Mandatory reservation quota, unless otherwise stated.” 11. It is contended that the petitioners have not challenged the relevant clauses in the prospectus and if that be the case, they cannot be heard to contend that the seats which remain unfilled shall not revert to the merit category. Finally, it is submitted that the principles laid down in Exhibit P5 and P6 judgments cannot apply as those judgments were rendered in a totally different fact scenario and before the commencement of the third allotment. 12. I have anxiously considered the submissions advanced and have perused the records. ``` WP(C) NO. 10536 OF 2022 ``` ``` 10 ``` 13. From the submissions advanced, I find that the total NRI seats in the State of Kerala is 358, out of which 300 seats were filled up prior to the second allotment. At the time of filing of the writ petition, about 57 seats in the NRI quota remain unfilled. After the passing of the interim order on 29.3.2022, a few more students have exercised their option. However, as on date, about 46 seats remain unfilled. That can only mean that no eligible NRI quota candidate is available to exercise the option. I find from the sequence of events that ample time was granted to the NRI quota candidates to exercise their option. Furthermore, the classes have commenced and as per the directions issued by the National Medical Commission, the closing date for admission proceedings is 05.04.2022. In that view of the matter, clause 5.5.4 of the prospectus would come into play and the same being not under challenge, the respondents would be at liberty to fill up the seats in accordance with the provisions of the prospectus. Extending the time for fresh registration would only inure to disrupt the academic calendar. In view of the above discussion, the writ petition fails and the same will stand dismissed. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** avs ``` WP(C) NO. 10536 OF 2022 ``` ``` 11 ``` ## **`APPENDIX OF WP(C) 10536/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF CERTIFICATE OF REGISTRATION ISSUED BY THE DISTRICT REGISTRAR (GENERAL)/SOCIETIES REGISTRAR, ERNAKULAM Exhibit P2TRUE COPY OF RELEVANT PORTIONS OF KEAM 2021 RANK LIST OF ELIGIBLE CANDIDATES IN THE NRI QUOTA Exhibit P3TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT ON 17-03-2022 Exhibit P4TRUE COPY OF CIRCULAR DATED 18-03-2022 ISSUED BY THE KERALA UNIVERSITY OF HEALTH SCIENCES Exhibit P5TRUE COPY OF JUDGMENT DATED 04-12-2020 IN W.P.(C).NO.26619 OF 2020 OF THIS HONOURABLE COURT Exhibit P6TRUE COPY OF JUDGMENT DATED 08-12-2020 IN W.P.(C).NO.26757 OF 2020 OF THIS HONOURABLE COURT ```