Principal Kannur Medical College, Anjarakkandi, Kannur v. Admission Supervisory Committee for Professional Colleges in Kerala and Ahammed Sadir

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 28TH DAY OF JULY 2020 / 6TH SRAVANA, 1942** **WP(C).No.16369 OF 2019(U)** ## **PETITIONER:** **THE PRINCIPAL KANNUR MEDICAL COLLEGE, ANJARAKKANDI KANNUR, KERALA 670 612.** **BY ADVS.** **SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS:** **1 THE ADMISSION AND FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, T.C. 15/1553-4 PRASANTHI BUILDINGS, M.P. APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 014, REPRESENTED BY THE CHAIRMAN.** **2 AHAMMED SADIR, S/O. ABDUL GAFOOR, KUNNUMMAL MALIYATT HOUSE, KOTTATHANGADI, KODINHI P.O., THIRURANGADI TALUK, MALAPPURAM 676 311.** **R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES R2 BY ADV. SRI.B.KRISHNA MANI R2 BY ADV. JOBY KURIAKOSE T.J.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-072020, THE COURT ON 28-07-2020 DELIVERED THE FOLLOWING:** W.P (C) No.16369/2019 -2- ## **J U D G M E N T** ## Dated this the 28[th] day of July 2020 ## **Gopinath, 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 [Act 19 of 2006] (now repealed), through an order dated 14.11.2016.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. 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 W.P (C) No.16369/2019 -3- 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 04-092018. 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 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 W.P (C) No.16369/2019 -4- payable by the petitioner college on account of the fees and other amounts collected from one Ahammed Sadir. 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 (A.M.Shaffique.J.) 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 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 W.P (C) No.16369/2019 -5- 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 Smt. Nisha George, learned Counsel for the petitioner and Smt. Mary Benjamin, learned Standing Counsel for the 1st respondent (the Admission and Fee Regulatory Committee) and B. Krishna Mani learned Counsel appearing for the 2nd respondent, the complainant before the 1st 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. She states that the college has not received any amount other than the admitted amount of Rs.11.65 lakhs and therefore no further liability could be fastened on the college since an amount of Rs.23.30 lakhs being double the amount of Rs.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 1st 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 W.P (C) No.16369/2019 -6- in severe malpractices resulting in the orders against them which have already been noticed above. She would urge that we must not interfere with the orders which have been issued by the ASC after careful scrutiny of all material 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 nonimpleadment 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 & ors - (2016) IX SCC 263**_ . 7. The ASC has, on 16-04-2019 determined the amount payable to student/complainant to be a sum of Rs.39,39,000/- after deducting the amount of Rs.23,30,000/- already paid by the college. We have gone through the order dated 16-04-2019 which is 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 Court. W.P (C) No.16369/2019 -7- 8. The ASC has considered the documents produced before it in order to determine whether the parents of the student had the source to make payment of Rs.37.17 lakhs to the college. As already noticed, the ASC passed Ext.P8 order directing the college to refund an amount of Rs.39,39,000/- to the student. This figure was arrived at by accepting the case of the mother of the student that she had paid a total sum of Rs.37.17 lakhs to the college authorities. After deducting a sum of Rs.11,65,000/- which was the amount collected as fee (including hostel fee), the Committee held that the amount collected over and above the fee was Rs.25,52,000/-. In terms of Ext.P1 order of the Supreme Court 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. No.|Particulars|Amount| |---|---|---| |1|Fee includinghostel fee|Rs.11,65,000/-| |2|Twice the amount collected over and above<br>the fee(Rs.25,52,000/- x 2)|Rs.51,04,000/-| |3|Amount alreadyrefunded|Rs.23,30,000/-| |4|Balance payable (1 + 2) - 3|Rs.39,39,000/-| 9. According to the college, they have received only Rs.10 lakhs towards fee and Rs.1,65,000/- towards hostel fee. In order to prove the source of Rs.37.17 lakhs, the mother of the student filed a proof affidavit which is marked as Ext.P6 in this writ petition. W.P (C) No.16369/2019 -8- 10. We have perused the documents referred to as Exts.A1 to A6 and the proof affidavit filed by the mother of the student, in order to determine whether there was acceptable proof regarding the source of funds to have paid a sum of Rs.37,17,000/- to the college. As already noticed the Supreme Court had clearly indicated in its order dated 04-10-2018 that the determination of the amount payable shall be on the basis of the evidence and the materials placed before the Committee. Exhibit A1 will show that an amount of Rs.1,00,000/- was withdrawn from the account of Amna Jabin who is the sister of the student on 04-09-2016. Exhibit A2 statement of accounts of Sri. Abdul Gafoor Kunnummal, the father of the student will show that he had withdrawn a sum of Rs.10 lakhs in cash on 01-09-2016. There are other cash withdrawals in sums of Rs.20,000/- and Rs.10,000/- on various dates from the account of Sri. Abdul Gafoor Kunnummal totalling to Rs.1,40,000/-. Exhibits A3 & A4 are the statements of account of the student himself. We see that there is a withdrawal of the total amount of Rs.5 lakhs from the accounts to which these statements relate, in cash. Though the counsel for the petitioner would submit that the sum of Rs.4 lakhs is seen withdrawn from an account which shows that account relates to an _'agricultural gold loan - non - crop purpose'_ , we accept the case of the learned counsel for the 2nd respondent that this was a withdrawal for making payment to the college. W.P (C) No.16369/2019 -9- Exhibit A5 will show that an amount of Rs.1,00,000/- was withdrawn from the account of the mother of the student on 04-08-2016. Thus we find that there is sufficient source for a total of Rs.18,40,000/-. It is the case of the mother of the student that she had another Rs.7 lakhs with her in cash and this amount was also paid to the college. We are unable to accept that statement on account of the fact that there is absolutely no explanation regarding the source for such sum to have been retained by her in cash. There is also no explanation as to why such amount was kept in cash and from where such amount had been generated. The other document considered by the Committee is Ext.A6 which is an agreement for sale executed by one Kunhi Pathu who stated to be the grand mother of the student (mother's mother). It is the case of the mother of the student that Kunhi Pathu had received Rs.12,00,000/- as advance and this amount had been given to her for the purposes of making payment to the college. The learned counsel for the petitioner would point out that the agreement which has been produced before us is executed much after the date of admission. We see that the sale agreement is executed only on 03-032017. Though that document refers to an advance payment of Rs.12 lakhs, it is not discernable as to whether such amount was paid on the date of agreement or on any earlier date. Exhibit A6 is not a registered document. It also does not bear the signature of any witness. It is also not the case of W.P (C) No.16369/2019 -10- the 2nd respondent that this agreement had been followed up by a registered sale deed which would have gone a long way in establishing the genuineness of the transaction. Even if we were to take the statements in Ext.A6 at face value, the manner and mode of payment of Rs.12 lakhs to Kunhi Pathu is not disclosed. No independent evidence has been let in regarding Ext.A6 document. None of the parties to the agreement have been examined. As the document does not bear the signature of any witness, the question of examining the witness to the document also does not arise. We therefore hold that we cannot accept the case of the mother of the student that she had received Rs.12 lakhs from her mother. Thus on a perusal of the material placed before the Committee we hold that the parents of the student had sufficient source for raising a total amount of Rs.18,40,000/- only. Therefore after reducing the amount of fee of Rs.11,65,000/-, the amount additionally collected will be Rs.6,75,000/-. Double that amount has to be refunded together with the amount of fees of Rs.11,65,000/-. The determination by the committee is modified as under:- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fees includinghostel fee|Rs.11,65,000/-| |2|Double the amount collected over and above<br>the fee(Rs.6,75,000/- x 2)|Rs.13,50,000/-| |3|Total amount payable in terms of the direction<br>of the Supreme Court|Rs.25,15,000/-| |4|Amount already paid|Rs.23,30,000/-| |5|Balance amountpayable|Rs.1,85,000/-| W.P (C) No.16369/2019 -11- Thus this writ petition will stand allowed in part. The college shall refund an amount of Rs.1,85,000/- to the 2nd respondent without any further delay and at any rate within four weeks from the date of receipt of a copy of this judgment, failing which further steps in accordance with law shall be taken by the 1st respondent. ## **Sd/-** **A.M.SHAFFIQUE** **JUDGE** **Sd/GOPINATH P. JUDGE** ## **AMG** W.P (C) No.16369/2019 -12- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY THE HONBLE SUPREME COURT IN SLA C NO. 23225/2018 DATED 29.8.2018** - **EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE HONBLE SUPREME COURT IN M.A. NO. 2354 OF 2018 IN SLA C NO. 23225/2018 DATED 4.10.2018** - **EXHIBIT P3 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 31.7.2018 SENT BY THE 2ND RESPONDENT TO THE CHAIRMAN OF THE ADMISSION SUPERVISORY COMMITTEE** - **EXHIBIT P4 TRUE COPY OF THE OBJECTIONS/STATEMENT GIVEN BY THE PETITIONER BEFORE THE COMMITTEE** - **EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 24.9.2016 ISSUED BY THE COLLEGE FOR THE REMITTANCE OF FEE OF RS. 11.65 LAKHS.** - **EXHIBIT P6 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH THE COPY OF THE BANK STATEMENT OF THE DEPONENT AND HER FAMILY AS WELL AS AN AGREEMENT FOR SALE.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO. ASC 100/16/MBBS/KMC DATED 6.9.2016 AND SI SUED ON 9.9. 216 BY THE ADMISSION SUPERVISORY COMMITTEE.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO. ASC (P) 91/18/HO/TVPM/MBBS/KMC DATED 16.4.2019 PASSED BY THE ADMISSION SUPERVISORY COMMITTEE.**