Kunhitharuvai Memorial Charitable Trust v. State of Kerala and Others

**“CR”** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. MONDAY, THE 15[TH] DAY OF NOVEMBER 2021 / 24TH KARTHIKA, 1943 ## WP(C) NO. 10882 OF 2021 ## **PETITIONER/S:** KUNHITHARUVAI MEMORIAL CHARITABLE TRUST, CORPORATE OFFICE, KMCT MEDICAL COLLEGE CAMPUS, MANASSERY, MUKKAM, KOZHIKODE 673 602 REPRESENTED BY ITS CHAIRMAN AND MANAGING TRUSTEE, DR. K. MOIDU, S/O. KUNHITHARUVAI HAJI, AGED 86 YEARS, RESIDING AT HAZEL, VAZHIPOKK ROAD, THONDAYAD BYPASS, KOZHIKODE 673 016 BY ADVS. K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN ## **RESPONDENT/S:** - 1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 - 2 THE PRINCIPAL SECRETARY, GOVERNMENT OF KERALA, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 - 3 THE PRINCIPAL SECRETARY, SCHEDULED CASTE AND SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 - 4 THE DIRECTOR, DIRECTORATE OF SCHEDULED CASTE AND SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, 4TH FLOOR, VIKAS BHAVAN, THIRUVANANTHAPURAM 695 033 - 5 THE DISTRICT DEVELOPMENT OFFICER FOR SCHEDULED CASTE AND SCHEDULED TRIBE, DISTRICT DEVELOPMENT OFFICE, CIVIL STATION, KOZHIKODE 673 020 ## **W.P. (Civil) No. 10882/2021** -2- - 6 ADMISSION ADVISORY COMMITTEE FOR MEDICAL EDUCATION IN KERALA,HEAD OFFICE, TC 15/1553-4, PRASANTH BUILDING, M.P APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014 REPRESENTED BY CHAIRMAN - 7 THE DIRECTORATE OF MEDICAL EDUCATION OF KERALA STATE,MEDIAL COLLEGE POST, THIRUVANANTHAPURAM 695 011 REPRESENTED BY ITS DIRECTOR. - 8 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001 - 9 KERALA MEDICAL COLLEGE, REPRESENTED BY ITS CHAIRMAN, KERALA, MEDICAL COLLEGE, CHERUPLASSERY ROAD, MANGODE, PALAKKAD-679 503 - **IS IMPLEADED AS ADDL.R9 AS PER ORDER DATED 09-08-2021 IN IA 1/2021** BY ADV GOVERNMENT PLEADER SRI. M.K. ROBIN RAJ ## **OTHER PRESENT:** STANDING COUNSEL FOR R6 SRI. R.T PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-11-2021, THE COURT ON 15.11.2021, DELIVERED THE FOLLOWING: ## **W.P. (Civil) No. 10882/2021** -3- ## **CR** ## **W.P. (Civil) No. 10882/2021** …........................................................... Dated, this the 15[th] day of November, 2021 ## **JUDGMENT** ## **Mohammed Nias,J.** The above Writ Petition is filed by a Trust which runs various educational institutions. Alleging that the respondents 1 to 5 did not remit the course fees, special fees, hostel fees etc. of five re-allocated students, which they were obliged under Exhibits P1 and P3, this Writ Petition is filed. 2. For the year 2016-2017, Government of India had granted letter of permission to Kerala Medical College, Palakkad, the additional 9[th] respondent herein, for starting MBBS course with an intake of 150 students. By Ext.P1 Government Order, the fee payable by the students was fixed as per which the fee payable by the Scheduled Caste/Scheduled Tribe and students ## **W.P. (Civil) No. 10882/2021** -4- from the other eligible community (OEC) was fixed at Rs. 2,50,000/- per year and Government had taken up the responsibility to remit the above amount to the College where those students are studying. After the admission of the above students as aforesaid, noticing shortcomings about the 9[th] respondent College, on recommendation of the Medical Council of India, Government of India decided to withdraw the letter of permission granted to the said college making it impossible for the students to continue their studies. The students then filed Writ Petitions before this Court and pursuant to the directions passed, the respondents decided to reallocate the students who were studying in the 9[th] respondent College to nine other self financing colleges in the State and accordingly, Ext. P3 minutes along with list of students were prepared and 26 students were reallocated to the petitioner's college of which 4 students belonged to the Scheduled Caste/Scheduled Tribe and one student to the OEC. As stated above, their fee were to be remitted by respondents 1 to 5 to the petitioner College as evident from Ext.P1 and P3. ## **W.P. (Civil) No. 10882/2021** -5- 3. Immediately on re-allocation of the students, the petitioner sent Ext. P4 request to the 5[th] respondent along with all requisite documents for remitting the payment on behalf of the 5 students mentioned above. Since no action was taken on Ext. P4, the petitioner again send Exts. P7 and P8 requests to the 3[rd] and 4[th] respondents requesting for remitting the fees of those students in tune with Ext. P1 and P3 orders. By Ext. P9 communication, the 5[th] respondent intimated the College that a concurrence had to be obtained from the 6[th] respondent in the matter of fixing the fee of the students, and thus, the request of the petitioner College to remit the fee was not acceded. It was in the wake of issuance of Ext. P9, the Writ Petition was filed for a declaration that the statement incorporated in Ext.P9 communication to the effect that respondent 3 to 5 need concurrence from the 6[th] respondent for fixing the course fee of the reallocated scheduled castes and other eligible community students studying in the petitioner's college is contrary to the terms and conditions fixed in Ext. P1 Government order and also for a direction to R1 to 5 for remitting the fee within a time frame. ## **W.P. (Civil) No. 10882/2021** -6- 4. A counter affidavit was filed on behalf of respondents 1 and 3 to 5 wherein it is admitted that the 5 students referred above joined the petitioner college on 15-7-2019 as second year students and that the District Development officer of the Scheduled Caste/Scheduled Tribe, Palakaad had remitted the fee up to third year to the additional 9[th] respondent College where they were previously studying and therefore, there is no liability to pay the same again to the petitioner college. Though, in the counter affidavit, it was stated that since the fee had already been remitted to the previous college where the students studied and therefore, it cannot be again disbursed to the petitioner college, the respondents did admit that erroneously payment was made to the 9[th] respondent who is liable to return the fee collected for the 2nd and the 3[rd] year and to rectify that the Assistant District Scheduled Caste Development Officer had visited the additional 9[th] respondent college and had also sent letters dated 30-11-2020 and 21-01-2021 but no reply was sent by them. The counter-affidavit filed on behalf of the respondents 1 and 3 to 5 is telling. It was based on the said ## **W.P. (Civil) No. 10882/2021** contention in the counter affidavit that the petitioner impleaded Kerala Medical College, Palakkad as the additional 9[th] respondent in the above case. Reply affidavit has also been filed by the petitioner controverting the averments made in the counter affidavit filed by the the official respondents. 5. We heard Sri. Jamaludeen, K.M., the learned counsel for the petitioner, and M.K. Robin Raj, the Special Government Pleader and also Sri. R.T.Pradeep, the learned counsel for the 6[th] respondent. 6. Though notice was served on the additional 9[th] respondent, they have not chosen to appear nor file a counter affidavit. 7. The liability of the Government to remit the fee on behalf of the five students is admitted, that no payment has been made to the petitioner college is admitted and above all the counter affidavit admits the position that a wrong payment had been made to the 9[th] respondent instead of the petitioner. It is ## **W.P. (Civil) No. 10882/2021** -8- also not disputed that the five students had joined the petitioner college on 15-07-2019 as second year students. The only contention put forward is that by a mistake on the part of the department concerned, fee has been remitted to the previous college, the additional 9[th] respondent and therefore, payment cannot be again made to the petitioner college. In such a case, we are at a loss to accept the stand of the government that it need not remit the fee of the five students to the petitioner. The petitioner cannot be denied the fees of the five students nor can the students be allowed to suffer the ignominy of being treated as defaulters of the fees for no fault of theirs. The dignity and self esteem of the students are also at stake due to the unreasonable stand taken by the Government. As submitted earlier, the liability to pay the fee is not being disputed and as a matter of fact, wrong payment has been effected to the 9[th] respondent college. 8. A reading of the counter affidavit as much as Ext.P9 order shows that there is lack of co-ordination among the departments in the matter of payment of fee of these 5 students ## **W.P. (Civil) No. 10882/2021** -9- who belong to the Scheduled Castes/Scheduled Tribes and from the other eligible community. 9. The departments represented by respondents 3 to 5 are established for improving the conditions of the Scheduled Castes/Scheduled Tribes that are recognized groups which need special attention. The students unfortunately made to appear as if they are refraining from payment of the fee when it was the sole responsibility of the official respondents who had undertaken the liability to pay the fees as is evident from Exhibits P1 and P3. Likewise, the lack of co-ordination between the various Government Departments has led to the lowering of the dignity of the students and we find the conduct of respondents 3 to 5 to be reprehensible. More so, when they are purportedly established to safeguard the interest of disadvantaged groups who require special attention through affirmative State action. 10. It is trite that the State, which is represented by the different departments, can only speak with one voice and they ## **W.P. (Civil) No. 10882/2021** cannot be heard to speak in two. The Government has only one policy. The departments have to implement the government policy and not their own policy. (See the judgments in Lloyd Electric and Engineering Limited v. State of Himachal Pradesh and Others (2016)1 SCC 560 and and Vadial Chemicals Ltd., v. State of A.P. And Others (2005) 6 SCC 292). 11. Doubtless, the single most powerful tool for the upliftment and progress of the Constitutionally recognized backward sections of the society is education. It is only the quality education that empowers the Scheduled Caste/Scheduled Tribes and the other economically backward communities. It is precisely for this reason that the Government agreed to remit the fee for the meritorious students who secured admission for the MBBS course. Such incentives on the part of the Government cannot be neutralized by taking a decision like the one in Ext. P9. In the result, the above Writ Petition is allowed. Respondents 1 to 5 or the competent among them are directed ## **W.P. (Civil) No. 10882/2021** to pay the 2[nd] and 3rd year fees of the petitioner college within a period of two months from the date of receipt of a copy of this judgment. The said respondents, after making the payment to the petitioner college will be free to recover the same from the additional 9[th] respondent, to whom they have made the payment under mistake, invoking the provisions including the Revenue Recovery Act. This Writ Petition is allowed as above. ## **Sd/-A.K. JAYASANKARAN NAMBIAR, Judge** **Sd/- MOHAMMED NIAS C.P, Judge** ani/15-11-2021 /true copy/ ## **W.P. (Civil) No. 10882/2021** -12- ## **APPENDIX OF WP(C) 10882/2021** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE G.O(RT) NO.| |---|---| ||2543/2016/HANDFWD DATED 9-9-2016 ISSUED| ||BY THE 2ND RESPONDENT ALONG WITH ITS| ||TYPE WRITTEN COPY| |EXHIBIT P2|TRUE COPY OF THE LETTER NO.S3/264/2018| ||HEALTH DATED 2-07-2019 ISSUED BY THE 2ND| ||RESPONDENT| |EXHIBIT P3|TRUE COPY OF THE LETTER DATED 26-06-2019| ||OF THE 7TH RESPONDENT ALONG WITH MINUTES| ||OF MEETING.| |EXHIBIT P4|TRUE COPY OF THE COVERING LETTER OF THE| ||PRINCIPAL OF THE PETITIONER'S COLLEGE| ||DATED 28-12-2019 ISSUED TO THE 5TH| ||RESPONDENT| |EXHIBIT P5|TRUE COPY OF THE LETTER OF THE PRINCIPAL| ||OF THE PETITIONER'S COLLEGE DATED 3-1-| ||2020 ISSUED TO THE 5TH RESPONDENT.| |EXHIBIT P6|TRUE COPY OF THE NOTIFICATION ISSUED BY| ||THE KERALA UNIVERSITY OF HEALTH SCIENCES| ||DATED 22-1-2020| |EXHIBIT P7|TRUE COPY OF THE LETTER OF THE PRINCIPAL| ||OF THE PETITIONER'S COLLEGE DATED 7-10-| ||2020 ISSUED TO THE 3RD RESPONDENT.| |EXHIBIT P8|TRUE COPY OF THE LETTER OF THE PRINCIPAL| ||OF THE PETITIONER'S COLLEGE DATED 7-10-| ||2020 ISSUED TO THE 4TH RESPONDENT.| |EXHIBIT P9|TRUE COPY OF THE COMMUNICATION DATED 22-| ||04-2021 ISSUED BY THE 5TH RESPONDENT TO| ||THE PETITIONER.|