Principal, Kannur Medical College, Anjarakandi, Mamba, Kannur v. Anil Kumar and The Admission and Fee Regulatory Committee for Professional Colleges in Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** **WP(C).No.28894 OF 2019(J)** ## **PETITIONER:** **THE PRINCIPAL, KANNUR MEDICAL COLLEGE ANJARAKANDI P. O., MAMBA, KANNUR - 670612. BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS:** **1 ANILKUMAR AGED 53 YEARS S/O. SHIVASANKARA PILLAI, RESIDING AT ANJANAM, EDATHARA CHEMPAZHANTHI P. O., TRIVANDRUM - 695567. 2 THE ADMISSION AND FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, T. C. 15/15534, PRASANTHI BUILDINGS, M. P. APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014, REPRESENTED BY THE CHAIRMAN. R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1506-2020, THE COURT ON 18-06-2020 DELIVERED THE FOLLOWING:** WP(C) No.28894/2019 -:2:- ## **J U D G M E N T** Dated this the 18[th ] day of June, 2020 ## _**Shaffique, J.**_ The admissions granted by the Kannur Medical College to the MBBS Course in that college, in the year 2016-17, were found to be illegal and contrary to law by the Admission Supervisory Committee (hereinafter also referred to as the 'ASC') constituted in terms of Section 4 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016. The Supreme Court refused to interfere with this order and it became final. As a consequence, the admissions granted to nearly 150 students had to be cancelled. Though the State promulgated an ordinance to regularize the admission, the said ordinance was declared unconstitutional by the Supreme Court. WP(C) No.28894/2019 -:3:- 2. On 25.07.2018 there was a recommendation by the ASC to the Kerala University of Health Sciences to withdraw the affiliation/recognition of Kannur Medical College for the academic year 2018-2019. These proceedings were found to be in order by a Division Bench of this Court through a judgment dated 1.8.2018 in W.P.(C) No.25895 of 2018. The matter was carried to the Supreme Court of India through S.L.P (C) No. 23225 of 2018 and connected cases. A consent order was passed on 29.08.2018 in S.L.P (C) No.23225 of 2018 and connected cases which order is on record in this case. We are concerned here only with the 1[st] direction that forms part of the consent order dated 29.08.2018 which provides that the college shall return an amount equivalent to the double of the amount collected from the students together with refund of the fee deposited by each one of the 150 students, with the college, by 04-09-2018. There was a further direction that the Admission Supervisory Committee shall ascertain and report as to whether the amounts in question have been refunded, as directed. On 1.9.2018, the Admission Supervisory Committee filed its report which _inter alia_ suggested that the amounts directed to be paid/refunded to each of the students WP(C) No.28894/2019 -:4:- have not been paid/refunded in terms of the directions issued by the Supreme Court. Therefore, a further direction was issued by the Supreme Court on 4.10.2018 through which it was directed that the Admission Supervisory Committee shall determine the amount payable to each one of the students. The ASC has passed individual orders in respect of claims raised before it by the students/guardians. In this writ petition, we are concerned with an order passed by the Admission Supervisory Committee, in terms of the direction issued by the Supreme Court, determining the amount payable by the petitioner college on account of the fees and other amounts collected from the applicant. 3. The question of maintainability of this Writ Petition under Article 226 of the Constitution of India having been questioned at the admission stage, a Division Bench of this Court, to which one amongst us (myself) was a party, came to the conclusion through an order dated 20.2.2020 that the Writ Petition was maintainable. Therefore, we do not propose to go into that issue again. 4. Before we proceed to determine the correctness or otherwise of the impugned order, we must notice the WP(C) No.28894/2019 -:5:- observation of the Supreme Court in the order dated 4.10.2018 that the quantum of amount collected by the College from each student and what amount has been refunded is a seriously disputed fact and also notice the following direction issued to the Admission Supervisory Committee (ASC) by the Supreme Court. _“The ASC_ _**to consider the material which may be placed on record by the respective parties and take a decision in accordance with law on the basis of the evidence adduced** in each of the case with respect to each of the students_ . (emphasis is ours) Thus it is clear that the direction given to the ASC was to individually determine the case of each student, in accordance with law, having due regard to the material which may be placed on record and the evidence adduced by the parties. Since the entire exercise undertaken by the ASC was in terms of the aforesaid direction of the Supreme Court, it goes without saying that the ASC was bound to conclude its determination strictly in terms of the direction issued by the Supreme Court. 5. We have heard Sri.Abdul Raoof, learned counsel for the petitioner, Smt.Mary Benjamin, learned Standing Counsel for the 2[nd] respondent (the Admission and Fee Regulatory WP(C) No.28894/2019 -:6:- Committee) and Sri.P.V.S.Sudheer, learned Counsel appearing for the 1[st] respondent, the complainant before the 2[nd] respondent Committee. The learned Counsel for the petitioner would contend that the ASC had determined the issue based on mere surmises and conjectures and that there was no reliable material before the Committee to hold that the amount in question was payable to the complainant/student. He states that the college has not received any amount other than the admitted amount of `11.65 lakhs and therefore no further liability could be fastened on the college since an amount of `23.30 lakhs being the double the amount of `11.65 lakhs has already been refunded. The learned Counsel appearing for the ASC would point out that the ASC which was a Committee under Act 19 of 2006 has not been impleaded in this writ petition and this, according to her, is a fatal defect. She states that the second respondent herein is the body constituted under the enactment which repealed and replaced Act 19 of 2006, namely Act 15 of 2017. On merits, she would contend that the College had indulged in severe malpractices resulting in the orders against them which have already been noticed above. She would urge that we must not interfere with WP(C) No.28894/2019 -:7:- the orders which have been issued by the ASC after careful scrutiny of all materials placed before it. The learned counsel for the student/complainant would support the findings in the order and urge that we should not interfere with the order. 6. We must first consider the question as to whether the non-impleadment of the ASC should be a ground to refuse consideration of the matter on its merits. We are of the considered opinion that the ASC is not a necessary party to these proceedings since the Committee is not required to justify its findings before this Court in any manner. We are fortified in taking such a view in the light of the law laid down by a 3 Judge Bench of the Supreme Court in _**M.S Kazi v. Muslim Education Society & Others**_ [(2016) 9 SCC 263]. 7. The ASC has on 21-06-2019 determined the amount payable to the student/complainant to be a sum of `31,43,000/after deducting the amount of `23,30,000/- already paid by the college. We have gone through the order impugned before us and perused the material produced before the ASC in order to determine whether the order passed by the ASC was sustainable and in accordance with the directions issued by the Supreme WP(C) No.28894/2019 -:8:- Court. 8. The complainant contended that they had paid a total amount of `33,19,000/- to the college authorities. After deducting a sum of `11,65,000/- which was the fee (including hostel fee), the Committee held that the amount collected in excess was `21,54,000/-. In terms of the Supreme Court order, the college was required to refund the fees and double the amount collected over and above the fees. Therefore, the Committee determined the amount to be refunded in the following manner:- |Sl.<br>No.|Particulars|Amount| |---|---|---| |1|Fee including hostel fee|`11,65,000/-| |2|Twice the amount collected over and above<br>the fee (`21,54,000 x 2)|`43,08,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|`31,43,000/-| of `33.19 lakhs for the admission of his daughter. The college authorities took up a contention that they have received `11.65 lakhs towards tuition fee and hostel fee. No other amount was received. 10. In order to prove the source, the complainant placed reliance on Exts.A1 to A7 documents. The complainant also filed WP(C) No.28894/2019 -:9:- an affidavit inter alia stating that he had withdrawn an amount `33,20,500/- out of which he remitted `33,19,500/- to the college. The withdrawals have been specified in paragraph 4 of the affidavit, which reads as under:- _“4. I am hereby submitting the Bank proof and the affidavit of personal loans_ _(i) Withdrawal of cash amount of Rs. 5.52,000/- on 29.09.2016 bearing No.30252149133 of Anilkumar S., SBI, Mangalapuram, Thiruvananthapuram._ _(ii)Withdrawal of cash amount of Rs. 3,13,000/- on 01.09.2016 from the Account bearing No. 216201000005268 of Anilkumar S, 1OB,Kaniyapuram. Thiruvananthapuram._ _(iii) Withdrawal of cash amount of Rs. 6,40,000/- on 28.09.2016 from the Account bearing No. 4065310140777 of Anilkumar S, Kerala Gramin Bank, Chenkottukonam, Thiruvananthapuram._ _(iv) Withdrawal of cash amount of Rs. 10,000- on 20.08.2016 from the Account bearing No. 32115045048 ATM withdrawal of Jyothi. A.S, SBI, Kazhakuttom, Thiruvananthapuram._ _(v) Withdrawal of cash amount of Rs. 10,000/- on 20.08.2016 from the Account bearing No. 32115045048 ATM withdrawal of Jyothi A.S,SBI, Kazhakuttom, Thiruvananthapuram._ _(vi) Withdrawal of cash amount of Rs. 3,500/- on 26.08.2016 from the Account bearing No. 32115045048 ATM withdrawal of lyothi. A.S. SBI, Kazhakuttom, Thiruvananthapuram._ _(vii) Withdrawal of cash amount of Rs. 5,000/- on 27.08.2016 from the Account bearing No. 32115045048 ATM withdrawal of Jyothi. A.S SBI, Kazhakuttom, Thiruvananthapuram._ WP(C) No.28894/2019 ## -:10:- _(viii) Withdrawal of cash amount of Rs. 9,30.000/- on 01.09.2016 from the Account bearing No. 32115045048 cash withdrawal of Jyothi. A.S, SBI, Kazhakuttom, Thiruvananthapuram._ _(ix) Withdrawal of cash amount of Rs. 67,000/- on 29.09.2016 from the Account bearing No. 32115045048 cash withdrawal of Jyothi. A.S, SBI, Kazhakuttom, Thiruvananthapuram. (x)Withdrawal of cash amount of Rs. 3,40,000/- on 28.09.2016 from the Account bearing No. 40653101040759 cash withdrawal of Jyothi. AS, Kerala Gramin Bank, Chenkottukonam, Thiruvananthapuram._ _(xi) On August availed a loan of Rs. 2,50,000/- by Anilkumar.S. from Mr.N. Appukuttan Nair through an affidavit._ _(xii) On September 2016, availed a loan of Rs. 2,00,000/- by Anilkumar S. from Smt. Sarojini Amma. B through an affidavit.”_ The withdrawal of `5,52,000/- on 29/9/2016 is covered by Ext.A1 statement of account and `3,13,000/- on 1/9/2016 is covered by Ext.A2 statement of accounts. The complainant had taken a gold loan of `6,40,000/- on 28/9/2016 as evident from Ext.A3 statement of accounts of Kerala Gramin Bank. The complainant's wife Smt.Jyothi had withdrawn `9.3 lakhs on 1/9/2016 from State Bank of India, Kazhakuttom branch as evident from Ext.A4. She had further withdrawn `67,000/- on 29/9/2016 from the same bank as evident from Ext.A4 itself. Ext.A5 statement of accounts proves that she had withdrawn `3,40,000/- from Kerala Gramin Bank. We do not find any reason to doubt the genuineness of the WP(C) No.28894/2019 -:11:- aforesaid documents. The Committee had however taken note of ATM withdrawals of `20,000/- at the rate of `10,000/- each on 20/8/2016, `3,500/- on 26/8/2016 and `5,000/- on 27/8/2016. These are small amounts which would have been withdrawn for personal expenditure and cannot be treated as a source for payment of amount to the college. There is no rationale in placing reliance on the said withdrawals. Similarly, complainant states that he has received `2,50,000/- and a further amount of `2 lakh from his father in law and mother in law. Two affidavits were produced as Exts.A6 and A7 in order to prove the aforesaid fact. But it is relevant to note that the statement of account of these persons who had allegedly given the loan have not been produced. Therefore, we are of the view that no reliance can be placed on Exts.A6 and A7 without any supporting evidence to prove that those two persons viz., Appukuttan Nair and Sarojini Amma had withdrawn those amounts from their Bank. Under normal circumstances, they may not keep such amounts as cash in their custody. If they have withdrawn the said amount from a Bank, evidence should have been adduced to prove the said fact. In the light of the aforesaid finding, we are of the view that the WP(C) No.28894/2019 -:12:- complainant was able to show the source of funds only at `28,42,000/-. The Committee however proceeded on the basis that the entire source had been proved. There is no supporting evidence to justify Exts.A6 and A7. The complainant's evidence only justifies its source of `28,42,000/-. To that extent, we are of the view that the order passed by the Committee requires interference. The amount collected in excess is `16,77,000/(`28,42,000/- - `11,65,000/-). 11. Accordingly, the amount payable to the ## complainant/student is reworked as under:- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fees including hostel fee|`11,65,000/-| |2|Double the amount collected over and<br>above the fee (`16,77,000 x 2)|`33,54,000/-| |3|Total amount payable in terms of the<br>direction of the Supreme Court|`45,19,000/-| |4|Amount already paid|`23,30,000/-| |5|Balance amount payable|`21,89,000/-| The amount thus payable by the college to the complainant would be `21,89,000/-. In view of our finding as stated above, the impugned order dated 21/6/2019 of the Committee and produced as Ext.P10 shall stand modified accordingly. In the result, this writ petition is partly allowed as under:- WP(C) No.28894/2019 -:13:- The college shall refund an amount of `21,89,000/- (Rupees Twenty one lakh eighty nine thousand only) to the 1[st ] respondent within four weeks from the date of receipt of a copy of this judgment, failing which, further steps shall be taken by the 2[nd] respondent in accordance with law. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** Rp WP(C) No.28894/2019 -:14:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.8.2019. EXHIBIT P2 TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL (C) NO.23225/2018 OF THE HON'BLE SUPREME COURT DATED 29.8.2018. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP (C) NO.23225/2018 DATED 4.10.2018. EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP (C) NO.23225/2018 DATED 27.9.2019. EXHIBIT P5 TRUE COPY OF THE COMPLAINT 21.7.2018. EXHIBIT P6 TRUE COPY OF THE STATEMENT FILED BEFORE THE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE RECEIPT ISSUED BY THE COLLEGE. EXHIBIT P8 TRUE COPY OF THE UNDERTAKING DATED 18.1.2018. EXHIBIT P9 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH DEPOSITION. EXHIBIT P10 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT IN ASC(P)91/18/HO/TVPM/MBBS/KMC DATED 21.6.2019.** WP(C) No.28894/2019 -:15:- ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A)** **TRUE COPY OF THE STATEMENT CONTAINING A LIST OF THE PAYMENT, MADE TO THE COLLEGE, THE DATE OF PAYMENT, REFUNDABLE AMOUNT ASSESSED BY THE COMMITTEE, AMOUNT REFUNDED BY THE COLLEGE ETC.**