Muhammed Fairs N. & Meenakshi Sen v. Poomulli Neelakandan Namboodiripad Memorial Ayurveda Medical College & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** **RP.No.969 OF 2019** **JUDGMENT IN WP(C) 31998/2018(Y) OF HIGH COURT OF KERALA DATED 16.07.2018** ## **REVIEW PETITIONERS/PETITIONERS 2 AND 3 IN W.P.(C):** - **1 MUHAMMED FAIRS.N, AGED 18 YEARS S/O.YOUSUF.N, NADUKKOANCHIRA HOUSE, CHERPLASSERRY P.O., PALAKKAD- 679503.** - **2 MEENAKSHI SEN, AGED 18 YEARS D/O.BAJISEN VALLABHASSERY, PANICHIKAVU, PERUNNA WEST, CHANGANASSERRY- 686101.** **BY ADVS. SRI.S.SUJIN SRI.SAJU J PANICKER** ## **RESPONDENTS/FIRST PETITIONER/RESPONDENTS IN WP(C):** - **1 POOMULLI NEELAKANDAN NAMBOODIRIPAD MEMORIAN AYURVEDA MEDICAL COLLEGE, CHERUTHURUTHY P.O., SHORANUR, PALAKKAD, REPRESENTED BY IT SECRETARY-679531.** - **2 ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA T.C.15/15534, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHACADU, THIRUVANANTHAPURAM- 695014, REPRESENTED BY ITS CHAIRMAN.** - **3 KERALA UNIVERSITY OF HEALTH SCIENCE, MULAMKUNNATHUKAVU, MEDICAL COLLEGE P.O.,** R.P.No.969 of 2019 2 **THRISSUR DISTRICT, PIN- 680596, REPRESENTED BY ITS REGISTRAR.** **R3 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE** ## **OTHER PRESENT:** **SMT.MARY BENAMIN, SRI.P.SREEKUMAR, SRI.B.S.SWATHY KUMAR** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON** **18.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P.No.969 of 2019 3 ## **ORDER** ## **V.G.ARUN, J.** ## Review petitioners were petitioners 2 and 3 in the writ ## petition, wherein the prayers were as follows: “i) to declare that the petitioners 2 and 3 are legally entitled to get their admissions under the NRI quota approved in view of Exts P4 to P12 and the nonapproval of the same as per Ext.P3 is legally unsustainable and the same is to be quashed to the extent it relates to the non-approval of the admission of petitioners 2 and 3 and further declare that the 1[st] respondent is legally liable to approve the admission of the petitioners 2 and 3 and the 2[nd] respondent liable to permit the petitioners 2 and 3 to register as per Ext.P16; ii) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P3 and quash the same to the extent it relates to the non-approval of the admission of petitioners 2 and 3 in the NRI quota; iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding and compelling the 1[st] respondent to grant approval to the R.P.No.969 of 2019 4 admission of the petitioners 2 and 3 in the NRI quota for BAMS Course in the 1[st] petitioner college; iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding and compelling the 2[nd] respondent to permit the petitioners 2 and 3 to register as per Ext.P16;” 2. By Ext.P3 order, which was sought to be quashed, the Admission Supervisory Committee (“the Committee” for short) had withheld the admission of the review petitioners to the BAMS Course in the year 2017-18 under NRI quota, for failure on their part to produce the necessary certificate to prove their entitlement for admission. Under Ext.P3, the Committee had directed the Principal of the College (1[st] writ petitioner) in which the review petitioners had secured admission, to inform the candidates about their withheld status and to submit the documents, if any, to establish their right of claim for admission, failing which the admission of the withheld candidates was liable to be rejected without further R.P.No.969 of 2019 5 notice. Thereafter, certain documents were produced to prove the NRI status of the second review petitioner, but the authenticity of these certificates was doubted by the Committee. As far as the first review petitioner is concerned, the original employment certificate of the sponsor was not produced on the premise that it was lost. The writ petition was filed at that stage. 3. As noted by us in the judgment sought to be reviewed, after adjourning the matter on more than one occasion, the learned counsel for the writ petitioners had submitted a 'not pressed memo' seeking permission to withdraw the writ petition and to approach the Committee for passing final orders. The request was declined since further delay in finalising the admission of the review petitioners would cause substantial prejudice to them. Moreover, having noted another important aspect with regard to NRI R.P.No.969 of 2019 6 admissions, it was imperative that the aspect was dealt with here itself. This aspect was with respect to the impact of the term 'dependant' in Section 2(o) 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. 4. After considering the purpose behind reserving limited number of seats for NRI students and the precedents which led to enactment 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, as also the meaning of the term 'dependant', it was held that unless and until the candidate is dependant on the sponsor, he/she will not be entitled for R.P.No.969 of 2019 7 admission to NRI seats. It was also held that it is for the candidate to establish such dependency. 5. From a reading of the review petition, it is evident that review is not sought on the ground of there being an error apparent on the face of the judgment. On the other hand, the ground raised is that the review petitioners were not given any opportunity to produce the document showing their dependency with the sponsor. It is also contended that the review petitioners had produced all the documents as per Annexure-A1 notification containing the guidelines to be followed by the candidates seeking admission to NRI quota seats and that the guidelines did not mandate production of documents proving dependency of the candidates. 6. Heard Sri N.N.Sugunapalan (Senior Counsel) appearing for the review petitioners, Smt. Mary Benjamin, learned Standing Counsel for the Committee and R.P.No.969 of 2019 8 Sri.P.Sreekumar, learned Standing Counsel for KUHAS. 7. It is settled law that review of a judgment cannot be sought based on grounds which were not raised in the writ petition. That apart, even going by the pleadings and the documents in the writ petition, the review petitioners were fully aware of Ext.P17 clarificatory directions issued by the Committee after considering Ext.P2 Government Order and various judgments of this Court, including the judgment in W.P.(C) No.14708 of 2012 (Dr.Gowri Raj v. State of Kerala and others). In Ext.P17, the Committee had directed that the candidate applying for NRI seats has to prove that he/she is the dependant of the sponsor. Further, in the review petition, it has been pleaded that by order dated 5.7.2019, the Committee had granted the second review petitioner one month's time to prove her dependency and that the said fact was not informed to this Court. Hence, the ground that the R.P.No.969 of 2019 9 review petitioners ought to have been granted an opportunity to prove their dependency, is baseless. 8. As far as the legal position on the power of review is concerned, it would be apposite to refer to the judgment of the Honourable Supreme Court in _**Perry Kansagra v Smriti Madan Kansagra [2019 (3) SCALE 573]** ,_ wherein the Apex Court made the following exposition on exercise of review jurisdiction: _“ We have gone through both the judgments of the High Court in the instant case and considered rival submissions on the point. It is well settled that an error which is required to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record. To justify exercise of review jurisdiction, the error must be self - evident. Tested on this parameter, the exercise of jurisdiction in the present case was not correct. The exercise undertaken in the present case, in our considered view, was as if the High Court was sitting in appeal over the earlier decision dated 17/02/2017. Even assuming that there was no correct appreciation of facts and law in the earlier judgment, the parties could be left to challenge the decision in an appeal. But the review was not a proper remedy at all. In our view, the High Court erred in_ R.P.No.969 of 2019 10 _entertaining the review petition and setting aside the earlier view dated 17/02/2017.”_ In the light of the legal position laid down by the Apex Court, we find no reason to entertain the prayer for review, based on grounds which were not raised in the writ petition. Accordingly, the review petition is dismissed. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN JUDGE** Scl/18.10 R.P.No.969 of 2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE TRUE COPY OF THE NOTIFICATION DATED 20.06.2017 ISSUED BY THE OFFICE OF COMMISSIONER FOR ENTRANCE EXAMINATION. ANNEXURE A2 THE TRUE COPY 0F THE EMPLOYMENT CERTIFICATE OF MR.ASKAR ALI VAISISAR THE SPONSOR OF 1ST REVIEW PETITIONER. ANNEXURE A3 THE TRUE COPY OF THE EMPLOYMENT CERTIFICATE OF MRS.ASWATHY DILEEP THE SPONSOR OF 2ND REVIEW PETITIONER.**