Principal Kannur Medical College v. Admission Supervisory Committee for Professional Colleges in Kerala and Razal Mohamed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942** ## **WP(C).No.26199 OF 2019(Y)** ## **PETITIONER:** **THE PRINCIPAL** **KANNUR MEDICAL COLLEGE, ANJARAKKANDI P.O, MAMBA, KANNUR-670 612.** **BY ADVS.** **SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **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 RAZAL MOHAMED, S/O. KASHIM MOHAMED SAJEER, RAHMATH, SANATHANAPURAM P.O, ALAPPUZHA -688 003** **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 09-06-2020, THE COURT ON 12-06-2020 DELIVERED THE FOLLOWING:** WP(C) No.26199/2019 -:2:- ## **J U D G M E N T** Dated this the 12[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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016.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.26199/2019 -: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 WP(C) No.26199/2019 -:4:- 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 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 WP(C) No.26199/2019 -:5:- 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 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 WP(C) No.26199/2019 -:6:- 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 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 `19.65 lakhs and therefore no further liability could be fastened on the college since an amount of `39.30 lakhs being the double the amount of `19.65 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 WP(C) No.26199/2019 -:7:- 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 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 25-04-2019 determined the amount payable to student/complainant to be a sum of `23,39,000/- after deducting the amount of `39,30,000/- already WP(C) No.26199/2019 -:8:- 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. 8. The ASC has considered the following material/documents to reach its conclusion regarding the amount payable by the college to the student/complainant. |**Sl.**<br>**No.**|**Particulars**|**Document**<br>**number**<br>**referred to in**<br>**the order of the**<br>**ASC**| |---|---|---| |1|Proof affidavit of CW1 Smt.Zeenath Beevi,<br>mother of the student|P4| |2|Statement of Smt.Zeenath Sajeed issued by<br>SBI evidencing withdrawal of `40 lakhs on<br>20/9/2016.|A1| 9. The parents of the student contended that they have paid `2 lakhs on 19/9/2016 and 39.17 lakhs on 21/9/2016 to the college authorities. After deducting a sum of `19,65,000/- which was the fee (including hostel fee), the Committee held that the amount collected was `21,52,000/-. In terms of the Supreme Court order, the college was required to refund the fees and WP(C) No.26199/2019 -:9:- 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|`19,65,000/-| |2|Twice the amount collected over and above<br>the fee (`21,52,000 x 2)|`43,04,000/-| |3|Amount already refunded|`39,30,000/-| |4|Balance payable (1 + 2 - 3)|`23,39,000/-| 10. The statement of account of Smt.Zeenath Sajeed would prove that `2 lakh was withdrawn by way of a cheque on 19/9/2016 and `40 lakhs as cash by herself. The contention urged by the petitioner is that though there is evidence to prove withdrawal of `40 lakhs as cash, there is no material to prove that `2 lakh was withdrawn by the account holder. According to the counsel for petitioner, involvement of an agent by name Bineesh is referred by CW1 during cross-examination and therefore there is every possibility that the said amount would have been given as commission. But from the nature of evidence adduced by CW1, we do not think that there is any reason to doubt the WP(C) No.26199/2019 -:10:- genuineness of the claim. It is proved that the parents of the applicant were having sufficient funds for payment of the amount specified by them. Under such circumstances, the Committee was justified in issuing the impugned order. There is no reason to interfere with the same. Accordingly, we sustain Ext.P5 order. In the result, the writ petition is dismissed. **Sd/-** **A.M.SHAFFIQUE** Rp **JUDGE Sd/GOPINATH P. JUDGE** WP(C) No.26199/2019 -:11:- ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 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 P2** **TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP(C) NO. 23225/2018 DATED 4.10.2018.** **EXHIBIT P3 TRUE COPY OF THE STATEMENT FILED BEFORE THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH DEPOSITION.** **EXHIBIT P5** **TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT IN ASC (P) 91/18/HO/TVPM/MBBS/KMC DATED 25.4.2019.**