Principal, P.N. Panicker Souhruda Ayurveda Medical College Hospital and Research Centre v. State of Kerala and Admission Supervisory Committee for Medical Education in Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** ## **WP(C).No.5314 OF 2020(L)** ## **PETITIONER :** **THE PRINCIPAL, P.N. PANICKER SOUHRUDA AYURVEDA MEDICAL COLLEGE HOSPITAL AND RESEARCH CENTRE, PARAKALAI P.O., ANANDASRAM VIA, KANHANGAD, KASARAGOD DISTRICT - 671 531.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS :** **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT SECRETARIAL, THIRUVANANTHAPURAM - 695 001. 2 THE ADMISSION AND FEE REGULATORY COMMITTEE FOR MEDICAL EDUCATION IN KERALA, T.C. 15/1553-4, PRASANTHI BUILDINGS, M.P. APPAN ROAD, VAZHUTHACAUD THIRUVANANTHAPURAM 695 014, REPRESENTED BY THE MANAGER.** **R1 BY SPL.GOVT.PLEADER SRI.M.A.ASIF** **R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.5314 OF 2020(L)** 2 ## **JUDGMENT** Dated this the 3rd day of March 2020 ## **A.M.Shaffique, J.** This writ petition has been filed challenging Exts.P7 and P9 orders passed by the Admission and Fee Regulatory Committee for Medical Education in Kerala (for short AFRC). The petitioner is the Principal of an Ayurveda College in the self-financing sector. The college was given permission to admit 50 students by the Department of AYUSH, Government of India. The petitioner submits that by Ext.P1 order dated 26.07.2018, the Committee had approved the draft prospectus and directed that 15% seats shall be filled up under NRI quota and one of the conditions specified was that online application has to be called for from such candidates. 2. The petitioner sought permission from AFRC to convert the left over NRI seats as Management Seats. AFRC by order dated 08.10.2018 observed that permission for such conversion will be made only after scrutinizing the admission procedure. By yet another order dated 22.10.2018, the **WP(C).No.5314 OF 2020(L)** 3 Committee permitted the college to fill up the vacancies and to convert NRI seats to Managements seats on certain conditions and one of the conditions was that while publicity has to be given regarding the availability of the Management seats, the application shall be invited only from NEET qualified candidates through online application and a separate list shall be prepared by the respective Colleges. The aforesaid order came to be passed based on a representation from the Kerala State Indian System of Medicine Self Financing College Management Association. 3. By an order dated 02.04.2019 (Ext.P5), the AFRC approved the admission given to 41 students for BAMS course and withheld the admission in respect of six students, 4 under the Management Quota and two under the NRI Quota. The Kerala University for Health Science was directed to register the names of the approved candidates and in respect of other candidates, their registration was withheld. The college authorities submitted an affidavit before the AFRC inter alia stating that they were unable to receive online applications due to server problems and the said fact could not be intimated to the Committee by oversight and during the relevant time. Therefore, the Management sought for regularising their **WP(C).No.5314 OF 2020(L)** 4 admission. 4. By Ext.P7 order dated 09.10.2019, the Committee after having considered the respective contentions observed that though the ASC had directed the Principal and the office staff to produce the server details and log details to prove that the reason for not inviting application was due to software problems, it was mentioned by the college authorities that the log details were already cleared and they were not in a position to submit the same before the Committee. It was therefore found that the college authorities did not provide facilities for inviting application online until 15.11.2018 and therefore, it was held that their admission cannot be approved. 5. Still further, the Committee passed another order, Ext.P9 dated 13.01.2020, on the basis of the direction issued by this Court in WP(C).No.28199 of 2019. The Committee again confirmed the said view by observing that the College did not produce any materials to prove that they had a server problem and that the students had attempted to apply online. It was inter alia observed that the notices published by the college do not provide a link for the candidates to apply through online. **WP(C).No.5314 OF 2020(L)** 5 6. The petitioner had since produced certain additional documents in order to prove that vide publicity had been given in Malayala Manorama Daily dated 17.10.2018. Publication was also made as Ext.P10 and P12 inviting applications through online as directed by the AFRC. The counsel for the appellant argued that on account of the server problems, none of the candidates could apply online and therefore, they were admitted when there was a facility for spot admission, which was held on 31.10.2018 after advertising in Asianet News channel and notice of spot admission had been published on 29.10.2018 as Ext.P17. 7. The contention of the petitioner is that the finding of the Committee that the notices produced before the Committee did not contain the link of the website cannot be sustained, as the candidates on opening the website of the College can directly go to the link and there was no reason to specifically mention the same. That apart it is contended that all the candidates were NEET qualified and whoever has come for admission were admitted. There were altogether nine vacancies of which six candidates alone had approached for admission and they were qualified and eligible for being admitted and there is nothing irregular in the procedure **WP(C).No.5314 OF 2020(L)** 6 adopted by the college. The only mistake committed by the college is that when the server was down, the said fact was not brought to the notice of the AFRC at the appropriate time. It is therefore, submitted that if the students are not permitted to continue the course, substantial injustice would be caused to them. 8. The learned counsel also placed reliance on the judgment of the Apex Court in **Anitta Job and Others v. State** **of Kerala and Others [2018 KHC 6321]** especially paragraph 26 wherein the Apex Court had occasion to consider a case in almost similar situation wherein it was observed that when all the candidates were admitted and they are qualified and when there were no other complaints that any other candidate was not given admission in the college, there is justification in accepting the applications which were not, 'online'. Paragraphs 26 of the decision (cited supra) reads thus : 26. The observations were made in paragraphs 15 and 16 in the background of facts in that case. Present is not a case where the appellants did not appear in the NEET examination or they were granted admission disregarding the merits of other candidates in NEET. No details of any candidate who secured higher rank or merit to the appellants and was not given **WP(C).No.5314 OF 2020(L)** 7 admission in the College has been brought to our notice. It may be true that the order of the ASC dated 22.09.2016 did not expressly permit the College to invite all the candidates who had earlier made their unsuccessful attempts for on-line registration to come up for being included in the list of eligible candidates of the College but the College having given such opportunity to others in addition to 7 candidates who had complained to the ASC, such action of the College cannot be termed the mala fide or with oblique motive especially when similarly situated candidates were included in the list of eligible candidates. The High Court had not given due consideration to the important condition which was put by the College in the notice dated 23.09.2016 that candidates who come, claiming that they made unsuccessful attempts for on-line registration and come up with proof to show that they had prepared demand draft of fee which was of prior date to the last date of admission. The above safeguard was enough to ward of applicants who never thought of admission in the College prior to last date of admission. 9. We heard the learned counsel appearing for the AFRC as well as the learned Special Government Pleader appearing on behalf of the State. 10. It is inter alia argued that the issue had become final when Ext.P7 order dated 09.10.2019 had been passed by AFRC. The college authorities did not attempt to challenge the said order. From the said order, it is rather clear that the **WP(C).No.5314 OF 2020(L)** 8 college authorities admitted that they could not inform the server problems to the AFRC. That apart, when the matter was heard, no details were furnished to prove that they had a server problem and it was not on account of their laches or negligence that the online applications could not be called for. It is further argued that Ext.P7 order was not challenged by the College authorities, whereas one student had approached this Court by filing WP(C) No.28201/2019. By the judgment dated 23.10.2019 this Court permitted the said student to approach the AFRC with liability to produce additional materials which she proposed to file. It is argued that no additional materials were furnished and therefore the Committee had vide Ext.P9 order dated 13.01.2020 confirmed their earlier decision. 11. We heard the learned counsel on either side and have perused the records. There is no dispute about the fact that the mode of submission of application should be online. It is provided in the prospectus which had been reconfirmed in the orders passed by the ASC while permitting the conversion of NRI seats to Management Quota. It is also an admitted fact that none of the candidates had submitted online applications. The students had taken up a contention that they attempted to apply online and due to server and technical problems, they **WP(C).No.5314 OF 2020(L)** 9 could not apply online, on time. The College has also taken such a contention. If there had been any server problem during the relevant time, it was incumbent on the part of the College to have intimated the said fact to the AFRC, so that AFRC could have taken cognizance of the said fact. When the AFRC sought for evidence to prove that there was a server problem, the college authorities were unable to produce any materials. The AFRC had found that the screen shots submitted by the college was not a clear evidence to prove that they have invited online application before 15.11.2018. Of course, the AFRC had also observed that the College did not provide a link for the candidates to apply online. This finding may not be correct. When the college has issued advertisement seeking online applications, necessarily the students who are well versed in applying online, they could as well go to the website of the College and a link might be provided for applying online. None of the students have a case that they were unable to apply online since there was no link for applying. The contention urged by the students and the college was that the students could not apply online due to server and technical problems. **WP(C).No.5314 OF 2020(L)** 10 12. In a representation given by the Principal of the College to the Minister for Health and Social Welfare (Ext.P8), it is stated that as directed by the AFRC, the College had produced server details, log details and certain screen shots to prove that there were software problems, but the AFRC has not accepted the same. But before AFRC or before this Court, no such materials had been produced. It is also relevant to note that one of the students, Anakha.K. had approached this Court by filing WP(C).No.28201/2019. The Division Bench of this Court by judgment dated 23.10.2019 directed the matter to be reconsidered, since she represented that she has sufficient materials to prove that the online application could not be submitted on account of server problems. There cannot be any dispute about the fact that online applications are solicited from the students to ensure transparency in the admission process. It might be true that the students who have now been admitted are NEET qualified and so far there is no objection from any other person that they were denied admission. The College was able to fill up only six seats out of the nine available seats. But still, what exactly was the reason for not making arrangements for online application to be received **WP(C).No.5314 OF 2020(L)** 11 from the candidate is a matter which requires consideration. 13. In this case, though several opportunities were given, the college authorities or the students were unable to produce any material to prove that there was a server problem on account of which the students were unable to submit online application. When this fact had been found by the AFRC, in the absence of any material to take a different view, it may not be possible for us to overturn the said view. It might be wrong in stating that the College did not provide a link in advertisements published by the College. The link might be available in the website or the web page, as the case may be. But the question is, what was the actual issue for the students being unable to submit online application. When server problem has being projected by the Management, it is their obligation to prove the said fact. Even when an opportunity was given, they were unable to prove the said fact. They were unable to give their server details or the log details. Though in Ext.P8 they had stated that server details and log details were available, when AFRC requested for the same, they submitted that it was not available as they had already rectified the same. Therefore this is not a case where the petitioner had come with clean hands. They had not disclosed the available details **WP(C).No.5314 OF 2020(L)** 12 before the AFRC. The judgment in Anitta Job (supra) cannot be made applicable to the facts of the present case. In the light of the above discussion, we do not find any reason to interfere with the decision taken by the Committee in Ext.P7 and P9. This writ petition is therefore dismissed. Sd/- **A.M.SHAFFIQUE, JUDGE** Sd/- **V.G.ARUN, JUDGE** RKM **WP(C).No.5314 OF 2020(L)** 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO. AFRC 100/18/BAMS/BUMS/BSMS/KISMA DATED 26..07.2018 PASSED BY THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE COMMUNICATION NO. AFRC 100/18/BAMS/KISMA DATED 08.10.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER NO. AFRC 100/18/BAMS/BSMS/BUMS/KISMA DATED 22.10.2018 PASSED BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE COMMUNICATION NO. AFRC 100/18/BAMS/BUMS/BSMS/KISMA DATED 01.11.2018 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER NO. AFRC 100/18/BAMS/PNPSAMC DATED 02.04.2019 PASSED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT/REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT COMMITTEE DATED 22.04.2019. EXHIBIT P7 TRUE COPY OF THE ORDER NO. AFRC 100/18/BAMS/PNPSAMA DATED 09.10.2019 PASSED BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE COMMUNICATION/REPLY SUBMITTED BY THE PETITIONER BEFORE THE HONBLE MINISTER FOR HEALTH AND SOCIAL WELFARE DATED 10.10.2019. EXHIBIT P9 TRUE COPY OF THE ORDER NO. AFRC 100/18/BAMS/PNPSAMA DATED 03.01.2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE NEWSPAPER ADVERTISEMENT PUBLISHED IN MALAYALA MANORAMA DAILY ON 17.10.2018.** ## **WP(C).No.5314 OF 2020(L)** 14 - **EXHIBIT P11 TRUE COPY OF THE BILL ISSUED BY MALAYALA MANORAMA COMPANY LTD. DATED 17.10.2018.** - **EXHIBIT P12 TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN LATEST PRINTING AND PUBLISHING PVT. LTD. ON 17.10.2018.** - **EXHIBIT P13 TRUE COPY OF THE SCREEN SHOT TAKEN ON 23.10.2018 AS PUBLISHED IN THE WEBSITE OF THE PETITIONER COLLEGE.** - **EXHIBIT P14 TRUE COPY OF THE NEWS SCROLLED IN ASIANET NEWS CHANNEL ON 29.10.2018.** - **EXHIBIT P15 TRUE COPY OF THE DETAILS OF THE PAYMENT EFFECTED 29.10.2018.** - **EXHIBIT P16 COPY OF THE BENEFICIARY DETAILS ISSUED BY THE BANK DATED 29.10.2018.** - **EXHIBIT P17 COPY OF THE ADVERTISEMENT PUBLISHED IN LATEST PRINTING AND PUBLISHING PVT. LTD. ON 29.10.2018.** **EXHIBIT P18 COPY OF THE BILL RAISED BY LATEST PRINTING AND PUBLISHING PVT. DATED 30.10.2018.**