Praveen P. v. Admission Supervisory Committee for Professional Colleges, Kerala University of Health Sciences & Sut Academy of Medical Sciences

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** ## **THURSDAY, THE 17TH DAY OF AUGUST 2017/26TH SRAVANA, 1939** ## **WP(C).No. 23155 of 2017 (T)** **----------------------------** ## **PETITIONER :** **---------------------** **PRAVEEN P., AGED 19 YEARS, S/O.PRAKASH V., THADATHIL PUTHEN VEEDU, PUTHUCHIRA, UMAYANALLOOR P.O., KOLLAM-691 589.** ## **BY ADV. SRI.RAJESH P.NAIR** **RESPONDENT(S):** **----------------------------** **1. ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES, REPRESENTED BY ITS MANAGER, T.C.15/1553-4, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.** **2. KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR, THRISSUR-680 596.** **3. PRINCIPAL, SUT ACADEMY OF MEDICAL SCIENCES, VENCODE P.O., VATTAPPARA, THIRUVANANTHAPURAM-695 028.** **R1 BY SMT.MARY BENJAMIN, SC,** **R2 BY SRI.P.SREEKUMAR, SC, R3 BY ADVS. SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 23155 of 2017 (T)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **----------------------------------------** ## **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 18-05-2017 ISSUED BY THE 1ST RESPONDENT COMMITTEE.** - **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 24-05-2017 SENT BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR MBBS ADMISSION IN 3RD RESPONDENT COLLEGE.** - **EXHIBIT P4 TRUE COPY OF THE DEMAND DRAFT DATED 25-08-2016.** - **EXHIBIT P5 TRUE COPY OF THE TUITION FEE RECEIPT.** - **EXHIBIT P6 TRUE COPY OF THE REVIEW PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT COMMITTEE.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 06-07-2017 ISSUED BY THE 1ST RESPONDENT COMMITTEE REJECTING EXT.P6 REVIEW PETITION.** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.R.RAMACHANDRA MENON & SHIRCY V., JJ** ......................................... ## **W.P.(C)No.23155 OF 2017** ................................. Dated this the 17[th] day of August, 2017 ## **J U D G M E N T** ## **P.R.RAMACHANDRA MENON, J** Challenge is against Ext.P1 order passed by the first respondent committee and the consequential direction/ communication issued by the 2[nd] respondent University as per Ext.P2, whereby approval of the admission given to the petitioner in the 3[rd] respondent Institution for the academic year 2016-17 in the 'NRI quota' has been rejected, for the reason that the application submitted was not an 'on line' application and hence could not be given effect to. 2. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Admission Supervisory Committee, the learned Standing Counsel for the 2[nd] respondent University and also the learned counsel who entered appearance for the 3[rd] respondent Institution at length. W.P.(C)No.23155 OF 2017 2 3. The crux of the factual matrix is that the petitioner was desirous of getting admission for the first year MBBS course in 3[rd] respondent Institution. It is stated that he was given admission in the said Institution under the 'NRI quota'. The admissions effected in the respondent Institution was sought to be approved by the 1[st] respondent. The 1[st] respondent considered the issue and Ext.P1 order was passed on 18.05.2017, virtually after 9 months of granting admission, whereby approval was given in respect of other candidates, while declining the same only in respect of the petitioner, which is sought to be challenged in this writ petition. 4. According to the learned counsel for the petitioner, there was no lapse on the part of the petitioner in any manner. By virtue of the admission given to the petitioner, right of no other better merited candidate has been affected in any manner, nor was there any claim in this regard, by anybody else. It is also stated that, by the time the matter was considered by the 1[st] respondent, a sum of Rs. 15 lakhs was already paid towards the fee payable for the academic year, besides effecting a refundable interest free deposit of Rs.15 lakhs. Ext.P1 order came to be passed by the Committee and W.P.(C)No.23155 OF 2017 3 Ext.P2 order issued by the University have quite adversely affected the rights and interests of the petitioner, which hence are sought to be intercepted by this Court. 5. The learned counsel for the petitioner points out that the petitioner had in fact approached the 3[rd] respondent Institution for getting admission in the 'Management Quota'; especially when the petitioner had already cleared the NEET (National Eligibility cum Entrance Test)for the year 2016-17. But the 3[rd] respondent Institution informed that no seat was available in the Management Quota and that the petitioner could wait till the end of process and make an application in the 'NRI quota', which would be considered. It was accordingly, that the petitioner applied in the 'NRI quota' by submitting Ext.P3 application, manually, which was considered and admission was given. It is admitted that the petitioner could not submit application through on line. But there was no complaint from any corner as to the admission given to the petitioner, nor was there any claim by any better candidate in the NRI segment. This being the position, the course pursued by the 1[st] respondent-Admission Supervisory Committee and the 2[nd] respondent-University, is stated as not correct, proper W.P.(C)No.23155 OF 2017 4 or sustainable and hence the challenge. 6. Met with the situation, the petitioner preferred Ext.P6 review petition before the 1[st] respondent Committee, which however was dismissed as per Ext.P7 order dated 6.7.2017. It is pointed out that, though Ext.P1 order was passed by the Chairman and three other members, Ext.P7 order was passed only by the Chairman and the same is not valid under any circumstances. The learned counsel appearing for the 3[rd] respondent Institution submits that there is no dispute that the application submitted by the petitioner was a 'manual one' and that no 'on line' application was there. But the fact remains that there was no other NRI claimant and that there was no compromise in the merit involved; more so when the petitioner was entitled to get admission since he had already cleared NEET. The 1[st] respondent, while passing the orders under challenge, had not considered the mitigating circumstances and no findings have been rendered in this regard. Reconsideration of the matter by the Committee is sought for under such circumstances. 7. When the matter came up for consideration before this Court on 13.07.2017, it was pointed out that no 'on line' W.P.(C)No.23155 OF 2017 5 application was submitted from the part of the petitioner. It was accordingly, that an interim order was passed on 13.7.2017, prima facie holding that there was no merit in the writ petition. However, to mould the relief, if at all the petitioner was entitled to have any consideration, urgent notice on admission was ordered to the 3[rd] respondent by speed post. When the matter was listed for further consideration on 28.7.2017, time was sought for by the 3[rd] respondent to file an affidavit; however conceding the fact that there was no 'on line' application. No affidavit has been filed so far. It is pointed out that the matter was not listed thereafter, though it was ordered to be posted on 1.8.2017. In the said circumstances, based on the submission made by the learned counsel for the petitioner before another Bench, (since the regular Bench was not sitting), it was ordered to be listed. However, since it did not appear in the cause list, submission was made again on 4.8.2017 before another Bench, pursuant to which, the matter was called for and after hearing the submissions made on behalf of the petitioner, the writ petition was admitted granting an interim order of stay of Exts.P1 and P2, also enabling the petitioner to sit for the 1[st] year MBBS W.P.(C)No.23155 OF 2017 6 examination on a provisional basis. The said order reads as follows: ## _“ Admit._ _Standing Counsel Smt. Mary Benjamin takes notice for R1. Standing Counsel Sri.P.Sreekumar takes notice for R2. Adv.Sri.T.B.Hood takes notice for R3._ _The operation of Exts P1 and P2 are stayed to enable the petitioner to sit for the First year MBBS examination provisionally subject to the result of the Writ Petition. The second respondent University shall grant registration to the petitioner to facilitate his participation in the examination.”_ 8. The learned Standing Counsel for the 1st respondent Committee and the learned Standing Counsel for the 2[nd] respondent University submit that the order passed by the Bench on 4/8/2017 was without notice to the 1[st] and 2[nd] respondents, despite the fact that they had already entered appearance when the matter was listed before this Court earlier, as revealed from the orders/proceedings dated 13.7.2017 and 28.7.2017. We checked up the position with the Registry and we have come to understand that the matter was listed before another Bench only based on the submission made by the learned counsel for the petitioner and that no separate/additional cause list was published as to the posting of the case before the Bench on 4/8/2017. Be that as it may, W.P.(C)No.23155 OF 2017 7 the question to be considered is whether any interference is possible by this Court in so far as the petitioner admittedly had not preferred any 'on line' application for securing admission for the 1[st] year MBBS course. Since this factual position is conceded also by the 3[rd] respondent Institution, which alone is the point being considered herein, no further pleadings are necessary. 9. There can't be any dispute that transparency in admissions has to be maintained throughout. It was accordingly that an order was passed by the Admission Supervisory Committee on 4/8/2016 itself, that all applications for admission shall be made 'on line'. It has been affirmed by this Court as well. In so far as it is admitted from the part of the petitioner and also from the part of the 3[rd] respondent Institution that the application preferred by the applicant was not an 'on line' application, but a manual one as evident from Ext.P3, the admitted fact does not require to be proved. As such, no factual verification or consideration is necessary with regard to this aspect, as mentioned already. 10. The learned counsel for the 3[rd] respondent Institution has put up a contention to the effect that there is no finding by ## W.P.(C)No.23155 OF 2017 8 the Committee in Ext. P1 order as to the sacrifice of merit or as to any complaint in this regard. Reference is made to Sec.4 (7) 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 which reads as follows. _“ The Admission Supervisory Committee may hear complaints with regard to admission in contravention of the provisions contained herein. If the Admission Supervisory Committee after enquiry finds that there has been any violation of the provisions for admission on the part of the unaided professional colleges or institutions, it shall make appropriate recommendation to the Government for imposing a fine upto rupees ten lakhs and the Government may on receipt of such recommendation, fix the fine and collect the same in the case of each such violation or any other course of action as it deems fit and the amount so fixed together with interest thereon shall be recovered as if it were an arrear of public revenue due on land. The Admission Supervisory Committee may also declare admission made in respect of any or all seats in a particular college or institution to be de-hors merit and therefore invalid and communicate the same to the concerned University. On the receipt of such communication, the University shall debar such candidates from appearing for any further examination and cancel the results of examinations already appeared for.”_ ## 11. It is to be noted that the circumstances mentioned W.P.(C)No.23155 OF 2017 9 under Section 4(7) stand on a different footing, involving a complaint with regard to the admissions given, upon which it is possible for the Committee to intervene. Even in the absence of a complaint, by virtue of 'second limb' of the provision, it is still open for the Committee to pass appropriate orders, to ensure transparency with regard to the admissions to be made. The role of the Committee is to govern the field of admission, supervising the entire process of selection right from the beginning, that is, from the approval of the Prospectus. It was accordingly that the Committee had already passed an order on 4/08/2016 to the effect that all the applications shall be 'on line' which has been affirmed by this Court as well. The power of the Committee to intervene at each stage of the admission process has been settled by virtue of declaration made by the Division Bench of this Court as per the decision reported in **Kerala Private Medical College Management Association** v **. Admission Supervisory Committee for Professional Colleges (2013(3) KLT 316)** . The said stands affirmed by the Apex Court. This being the position, the power and the authority of the Committee who has passed Ext.P1 order is not liable to be interdicted. Since W.P.(C)No.23155 OF 2017 10 there was no error apparent on the face of the records, the Committee rejected Ext.P6 review petition as per Ext.P7 and no interference is possible in this regard as well. 12. There is a contention as put forth by the learned counsel for the petitioner as well as the learned counsel appearing for the 3[rd] respondent Institution that the student has been pursuing studies for nearly one year and that the admission might not be interdicted at this stage, which will cause irreparable hardship to the student. We are aware of the plight of the student. But the student had also a duty to see that the admission secured was in a proper manner, subject to the relevant provisions of law and orders passed by the competent authority/Courts in all respects. Similarly, more obligation was there on the part of the 3[rd] respondent Institution as well, to see that no admission was given to any student in any manner, contrary to the relevant provisions of law or the orders passed by the Admission Supervisory Committee/Courts. As it stands so, only the petitioner and the 3[rd] respondent Institution are to be blamed, if at all there is any grievance with regard to the admission already secured, admittedly when the application submitted was not an 'on line' W.P.(C)No.23155 OF 2017 11 application, but a manual one. The fact that the student was continuing the studies for about one year, cannot confer any right upon the petitioner student or the 3[rd] respondent Institution to regularise the illegal admission. In the above circumstances, we find that the challenge raised by the petitioner against Ext.P1 order passed by the 1[st] respondent Committee and the consequent direction issued by the 2[nd] respondent University to register the name of the student are not assailable under any circumstances, and interference is declined accordingly. 13. With regard to the further course of action, it remains a fact that a sum of Rs.15 lakhs was paid by the petitioner towards fees while securing admission, besides effecting a deposit of Rs.15 lakhs as 'interest free deposit' (which is refundable). Since the admission stands set aside, the 3[rd] respondent is bound to return the fees paid and also the 'interest free deposit', which shall be effected at the earliest, at any rate, within one month from the date of receipt of a copy of this judgment. It is for this purpose that we had issued notice to the 3[rd] respondent, to ascertain the factual position, giving an opportunity of hearing to the 3[rd] respondent as well. W.P.(C)No.23155 OF 2017 12 With regard to the academic year lost to the petitioner, we do not intend to express any opinion. If the petitioner has suffered any injury at the hands of the 3[rd] respondent, it is for the petitioner to move by appropriate proceedings, in accordance with the law, before the appropriate Forum, for being compensated to an appropriate extent. Leaving such right open, interference is declined and the writ petition is dismissed as devoid of any merit. Sd/- **P.R.RAMACHANDRA MENON JUDGE** Sd/- **SHIRCY V. JUDGE** //True Copy\\ P.A to Judge IAP