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

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** **WP(C).No.28968 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 RAJENDRAN PILLAI K. S/O. MADHAVAN PILLAI, ELANGALLOORVILLA THEKKATHIL, THATTARAKONAM P. O., KOLLAM - 691 005.** **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 0508-2020, THE COURT ON 11-08-2020 DELIVERED THE FOLLOWING:** WP(C) No. 28968/2019 -:2:- ## **J U D G M E N T** Dated this the 11[th] day of August, 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016.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. 28968/2019 -: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 ASC shall ascertain and report as to whether the amounts in question have been refunded, as directed. On 1.9.2018, the ASC 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 WP(C) No. 28968/2019 -:4:- 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 ASC 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 ASC 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 WP(C) No. 28968/2019 -:5:- 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.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 WP(C) No. 28968/2019 -:6:- Sri.P.V.S.Sudheer, learned counsel appearing for the 2[nd] respondent, the complainant before the 1[st] 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. 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. WP(C) No. 28968/2019 -:7:- 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, by order dated 17/7/2019 determined the amount payable to student/complainant to be a sum of `31,65,000/- . 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. 8. Petitioner college challenges Ext.P9 order dated 17/7/2019 by virtue of which the petitioner college was directed to refund an amount `31,65,000/- to the complainant. According to the college, the complainant was an Ex-service man and for WP(C) No. 28968/2019 -:8:- the admission of his daughter, no amount was received. But the complainant had given a postdated cheque for a sum of `11.65 lakhs being the tuition fee and hostel fee. The said cheque was not presented for collection and therefore no amount is payable to the complainant. 9. In the light of the respective contentions of the parties, the complainant was examined as CW1. He produced statement of accounts of ATM withdrawal from 29/8/2016 to 29/9/2016 for `5,43,000/-. `1.5 lakhs was withdrawn on 29/8/2016. The passbook would show withdrawal of `70,000/-. Statement of account in a joint account maintained by himself with his wife at SBI, Kollam was produced to prove withdrawal of `7.7 lakhs from 4/9/2016 to 29/9/2016. `1 lakh was withdrawn on 25/9/2016. Fixed Deposits with Thirumala Service Co-operative Bank in the name of his wife was closed and they received `6.5 lakhs on 4/9/2016. Ext.A4 is the statement of account of the student maintained at SBI, Kollam which also indicates ATM withdrawal of `2.3 lakhs between 10/9/2016 and 29/9/2016. From these materials, the Committee arrived at a conclusion that the complainant had paid `21.65 lakhs. WP(C) No. 28968/2019 -:9:- 10. Learned counsel for the petitioner would submit that the documents produced in the case would show a pattern of withdrawal of `10,000/-, `20,000/- etc., over a period of time which by itself cannot be accepted as evidence for the purpose of proving the source of payments alleged to have been made. But while giving evidence, CW1 was very categoric. In the chief affidavit, he has stated that these amounts were withdrawn on a day to day basis, as cash was to be paid to the college. 8 signed cheques and a cheque for `11.65 lakhs was also received. Despite the earnest argument of the learned counsel for the petitioner, we do not think that there is any reason to differ from the view taken by the Committee. During cross-examination itself, the complainant had maintained the stand that he had taken these amounts on different dates, as cash was to be paid to the college. 11. So taking into consideration the overall factual circumstances, we do not think it necessary to interfere with the said order. No amount was refunded to the aforesaid student and therefore there is justification on the part of the Committee to have directed payment of `31,65,000/-. WP(C) No. 28968/2019 -:10:- We do not find any error being committed by the Committee. Writ petition is dismissed. Rp **Sd/A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** WP(C) No. 28968/2019 -:11:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER NO. KMC/ASC/2016-REFUND/2018-2 DATED 13.8.2018 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 29.8.2018. 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 4.10.2018. EXHIBIT P4 TRUE COPY OF THE STATEMENT / OBJECTION FILED BY THE PETITIONER BEFORE THE COMMITTEE. EXHIBIT P5 TRUE COPY OF THE JOINT UNDERTAKING FILED BY THE 2ND RESPONDENT AND HIS DAUGHTER DATED 19.1.2018 EXHIBIT P6 TRUE COPY OF THE PROOF AFFIDAVIT OF THE 2ND RESPONDENT ALONG WITH ENCLOSED DOCUMENTS. EXHIBIT P7 TRUE COPY OF THE CHEQUE DATED 3.10.2016 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE DEPOSITION OF THE 2ND RESPONDENT DATED 11.7.2019. EXHIBIT P9 TRUE COPY OF THE ORDER NO.ASC(P)91/18/HO/TVPM/MBBS/KMC DATED 17.7.2019.** WP(C) No. 28968/2019 -:12:- ## **RESPONDENTS' EXHIBITS** **EXHIBIT R2(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.** **EXHIBIT R2(B)** **TRUE COPY OF THE MOVEMENT ORDER DATED 27/06/2015, ISSUED BY THE LT. COL./MAJOR, STATION WORKSHOP, EME, KOLKATTA-19 PERMITTING THE 2ND RESPONDENT TO PROCEED TO THE 654 EME BATTALION, SECUNDERBAD.** **EXHIBIT R2(C)** **TRUE COPY OF THE MOVEMENT ORDER DATED JANUARY 2016, ISSUED BY THE OFFICER COMMANDING, 844 FD WORKSHOP COY, EME, SECUNDERBAD, ALLOWING THE 2ND RESPONDENT TO PROCEED TO THIRUVANANTHAPURAM FROM SECUNDERBAD ON 23/01/2016.** **EXHIBIT R2(D) TRUE COPY OF THE MOVEMENT ORDER DATED MAY 2016 PERMITTING THE 2ND RESPONDENT TO PROCEED TO EME DEPOT BN. SECUNDERBAD AND TO RETURN AGAIN FROM SECUNDERBAD TO THIRUVANANTHAPURAM.** **EXHIBIT R2(E)** - **TRUE COPY OF THE STATEMENT OF ACCOUNT PERTAINING TO ACCOUNT NO. 20040169073, MAINTAINED BY THE 2ND RESPONDENT IN THE STATE BANK OF INDIA, KOLLAM MAIN BRANCH.** **EXHIBIT R2(F)** **TRUE COPY OF THE STATEMENT OF ACCOUNT PERTAINING TO ACCOUNT NO. 10648830464, MAINTAINED BY THE 2ND RESPONDENT AND HIS WIFE IN THE STATE BANK OF INDIA, KOLLAM MAIN BRANCH.** WP(C) No. 28968/2019 ## -:13:- |**EXHIBIT R2(G)**|**TRUE COPY OF THE RELEVANT EXTRACT OF**| |---|---| ||**THE PASS BOOK ISSUED BY THE STATE BANK**| ||**OF INDIA, KOLLAM MAIN BRANCH PERTAINING**| ||**TO ACCOUNT NO. 20040169073, MAINTAINED**| ||**BY THE 2ND RESPONDENT.**| |**EXHIBIT R2(H)**|**TRUE COPY OF THE RELEVANT EXTRACT OF**| ||**THE PASS BOOK ISSUED BY THE STATE BANK**| ||**OF INDIA, KOLLAM MAIN BRANCH PERTAINING**| ||**TO ACCOUNT NO. 10648830464, MAINTAINED**| ||**BY THE 2ND RESPONDENT AND HIS WIFE.**| |**EXHIBIT R2(I)**|**TRUE COPY OF THE RELEVANT EXTRACT OF**| ||**THE PASS BOOK ISSUED BY THE STATE BANK**| ||**OF INDIA, KOLLAM MAIN BRANCH PERTAINING**| ||**TO ACCOUNT NO. 20364211271, MAINTAINED**| ||**BY THE DAUGHTER OF THE 2ND RESPONDENT.**| |**EXHIBIT R2(J)**|**TRUE COPY OF THE RECEIPT SHOWING THE**| ||**CLOSURE OF THE F.D. NO.0101007762,**| ||**ISSUED BY THE THIRUMALA SERVICE CO-**| ||**OPERATIVE BANK.**| |**EXHIBIT R2(K)**|**TRUE COPY OF THE RECEIPT SHOWING THE**| ||**CLOSURE OF THE F.D. NO.0101007774,**| ||**ISSUED BY THE THIRUMALA SERVICE CO-**| ||**OPERATIVE BANK.**| |**EXHIBIT R2(L)**|**TRUE COPY OF THE RECEIPT SHOWING THE**| ||**CLOSURE OF THE F.D. NO.0101007775,**| ||**ISSUED BY THE THIRUMALA SERVICE CO-**| ||**OPERATIVE BANK.**| |**EXHIBIT R2(M)**|**TRUE COPY OF THE RECEIPT SHOWING THE**| ||**CLOSURE OF THE F.D. NO.0101007776,**| ||**ISSUED BY THE THIRUMALA SERVICE CO-**| ||**OPERATIVE BANK.**| |**EXHIBIT R2(N)**|**TRUE COPY OF THE RECEIPT SHOWING THE**| ||**CLOSURE OF THE F.D. NO.0101007777,**| ||**ISSUED BY THE THIRUMALA SERVICE CO-**| ||**OPERATIVE BANK.**|