Principal Kannur Medical College Anjarakkandi v. Admission Supervisory 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.** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **WP(C).No.28961 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 SUPERVISORY 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 MUHAMMED NAJEEM S/O MUHAMMED HANEEFA, KERALA GARDENS, NILAMEL P.O., KOLLAM - 691 535** **R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES R2 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-06-2020, THE COURT ON 19-06-2020 DELIVERED THE FOLLOWING:** WP(C) No.28961/2019 -:2:- ## **J U D G M E N T** Dated this the 19[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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016.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. 2. On 25.07.2018 there was a recommendation by the ASC to the Kerala University of Health Sciences to withdraw the WP(C) No.28961/2019 -:3:- 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 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 WP(C) No.28961/2019 -:4:- 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 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 WP(C) No.28961/2019 -:5:- 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.George Poonthottam, learned Senior Counsel and Smt.Nisha George for the petitioner, Smt.Mary Benjamin, learned Standing Counsel for the 1[st] respondent (the Admission and Fee Regulatory Committee) and Sri.P.V.S.Sudheer, learned counsel appearing for the 2[nd] respondent, the complainant before the 1[st] respondent Committee. The learned senior 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 WP(C) No.28961/2019 -:6:- 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 first 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 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 WP(C) No.28961/2019 -:7:- 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 27-07-2019 determined the amount payable to the student/complainant to be a sum of `20,35,000/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 Court. 9. As already noticed, the ASC passed Ext.P10 order directing the college to refund an amount of `20,35,000/- to the student. This figure was arrived at by accepting the case of the parents of the student that they had paid a total amount of `27.65 lakhs to the college authorities. After deducting a sum of `11,65,000/- which was the fee (including hostel fee), the WP(C) No.28961/2019 -:8:- Committee held that the amount collected in excess was `16,00,000/-. 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 (`16,00,000 x 2)|`32,00,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|` 20,35,000/-| According to the complainant, they paid an amount of `27.65 lakhs, out of which, `15 lakhs was paid on 10/9/2016 and `12.65 lakhs on 13/9/2016. The college authorities contended that they received only an amount of `11.65 lakhs. In order to prove the payment of `27.65 lakhs, father of the student was examined as CW1. He produced Ext.A1, a statement of account of his wife issued by the Federal Bank, Nilamel Branch which would show that an amount of `48 lakhs was deposited in her account on 24/4/2015. Exts.A3 and A4 statement of accounts of Miss.Muhsina Najeem and Miss Mubeena Najeem, daughters of CW1 discloses withdrawal of `12 lakhs each from their accounts WP(C) No.28961/2019 -:9:- on 24/4/2015. In the evidence of CW1, he stated that his daughter Miss.Mubeena Najeem got qualified for getting MBBS admission in the year 2015 for which they have withdrawn `12 lakhs each from the accounts of his daughters on 24/4/2015. His daughter did not get admission during the said academic year and therefore he kept the amount by himself which was utilized for payment to the college. He further contended that by Ext.A2, he had withdrawn an amount of `10 lakhs from Federal Bank, Nilamel. The Committee accepted the aforesaid version and proceeded on the basis that there is nothing to discredit the evidence of CW1. Learned counsel for the petitioner would submit that the only evidence available is that an amount of `10 lakhs was withdrawn on 11/5/2016. If at all the same can be treated as a source, the alleged withdrawal of `12 lakhs each from the account of daughters of CW1 on 24/4/2015 cannot be treated as a source for payment of the aforesaid amount as the said amount is alleged to have been withdrawn one year back and none can believe that the said amount was kept as cash with them for quite a long time. Learned counsel appearing for the 2[nd] respondent would submit that there is enough evidence to prove WP(C) No.28961/2019 -:10:- the source and there is no reason to disbelieve CW1. Even according to the complainant, `15 lakhs was paid on 10/9/2016 and `12.65 lakhs on 13/9/2016. The college admits to have received `11.65 lakhs. Though Exts.A3 and A4 statement of accounts would indicate that `12 lakhs each was withdrawn from the account of CW1's daughters on 24/4/2015, the contention that it was kept as cash for more than one year cannot be believed. Therefore, the Committee was not justified in accepting the whole of the said amount as the source for payment of the amount. However, taking into consideration the over all factual circumstances, we are of the view that the amount withdrawn from the account of Miss.Mubeena Najeem, the student, can be taken on record along with `10 lakhs withdrawn on 11/5/2016. Therefore, the total source available with the complainant and paid to the college can be fixed at `22 lakhs. Having arrived at the aforesaid figure, the amount payable/refundable by the college to the complainant/student is redetermined 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 (`10,35,000 x 2)|`20,70,000/-| |3|Total amount payable in terms of the<br>direction of the Supreme Court|`32,35,000/-| WP(C) No.28961/2019 -:11:- |4|Amount already paid|`23,30,000/-| |---|---|---| |5|Balance amount payable|`9,05,000/-| Exhibit P10 order therefore shall stand modified accordingly. In the result, this writ petition is partly allowed as under:- The college shall refund an amount of `9,05,000/- (Rupees Nine lakhs five thousand only) to the 2[nd] respondent within four weeks from the date of receipt of a copy of this judgment, failing which, further steps shall be taken by the 1[st] respondent in accordance with law. **Sd/-** ## **A.M.SHAFFIQUE** Rp **JUDGE Sd/GOPINATH P. JUDGE** -:12:- WP(C) No.28961/2019 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER NO. KMC/ASC/2016-REFUND/2018-2 DATED 13.08.2018 SUBMITTED BY THE COLLEGE TO THE COMMITTEE** - **EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN SLA(C)NO.23225/2018 DATED 29.08.2018** - **EXHIBIT P3 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN M.A.NO.2354 OF 2018 IN SLA(C)NO. 23225/2018 DATED 04.10.2018** - **EXHIBIT P4 TRUE COPY OF THE COMPLAINT FORWARDED TO THE COMMITTEE BY THE 2ND RESPONDENT VIA E-MAIL DATED 20.07.2018** - **EXHIBIT P5 TRUE COPY OF THE SETTLEMENT/OBJECTION FILED BY THE PETITIONER BEFORE THE COMMITTEE** - **EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 27.09.2016 ISSUED BY THE PETITIONER COLLEGE FOR THE REMITTANCE OF THE FEE** - **EXHIBIT P7 TRUE COPY OF THE JOINT UNDERTAKING FILED BY THE DAUGHTER OF THE 2ND RESPONDENT AND HER MOTHER DATED 19.01.2018** - **EXHIBIT P8 TRUE COPY OF THE PROOF AFFIDAVIT DATED 16.04.2019 ALONG WITH SOME DOCUMENTS ENCLOSED ALONG WITH THE PROOF AFFIDAVIT** - **EXHIBIT P9 TRUE COPY OF THE DEPOSITION OF THE 2ND RESPONDENT** - **EXHIBIT P10 TRUE COPY OF THE ORDER NO. ASC(P)91/18/HO/TVPM/MBBS/KMC DATED 27.07.2019** WP(C) No.28961/2019 -:13:- ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R2(A)** **TRUE COPY OF THE STATEMENT CONTAINING A LIST OF PAYMENT,MADE TO THE COLLEGE, THE DATE OF PAYMENT,REFUNDABLE AMOUNT ASSESSED BY THE COMMITTEE, AMOUNT REFUNDED BY THE COLLEGE ETC.**