The Principal, Kannur Medical College Anjarakandi P.O., Mamba, Kannur-670612 v. Pathumma Beevi W/o. K. Sathar, Al Ameen, TC 19/1638(6), P.O. Poojappura, Thiruvananthapuram-695012; and The Admission and Fee Regulatory 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.** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** ## **WP(C).No.29379 OF 2019(V)** ## **PETITIONER:** **THE PRINCIPAL, KANNUR MEDICAL COLLEGE ANJARAKANDI P O, MAMBA, KANNUR-670612.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS:** **1 PATHUMMA BEEVI W/O.K. SATHAR, AL AMEEN, TC 19/1638(6), P O POOJAPPURA, THAMALAM, TRIVANDRUM-695012. 2 THE ADMISSION AND FEE REGULATORY COMMITTEE, FOR PROFESSIONAL COLLEGES IN KERALA, T.C. 15/1553-4, PRASANTHI BUILDINGS, M.P. APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014, REPRESENTED BY THE CHAIRMAN. R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R1 BY ADV. SMT.A.MEGHA R1 BY ADV. SMT.KARTHIKA M.R. R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-062020, THE COURT ON 24-06-2020 DELIVERED THE FOLLOWING:** W.P (C) No.29379/2019 -2- ## **J U D G M E N T** Dated this the 24[th] day of June 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed), through an order dated 14.11.2016.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 matter was carried to the Supreme Court of India through S.L.P (C) No. W.P (C) No.29379/2019 -3- 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 payable by the petitioner college on account of the fees and other amounts collected from one Ajmal Khan P.S. W.P (C) No.29379/2019 -4- 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 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. W.P (C) No.29379/2019 -5- 5. We have heard Sri. Abdul Raoof, Learned Counsel for the petitioner and Smt. Mary Benjamin, Learned Standing Counsel for the 2[nd] respondent (the Admission and Fee Regulatory Committee) and Sri. Pirappancode V.S. Sudheer learned Counsel appearing for the 1[st] respondent, the complainant before the 2[nd] 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 Rs.19.65 lakhs and therefore no further liability could be fastened on the college since an amount of Rs.39.30 lakhs being double the amount of Rs.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 2[nd] 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 material placed W.P (C) No.29379/2019 -6- 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 30-07-2019 determined the amount payable to student/complainant to be a sum of Rs.25,39,000/- after deducting the amount of Rs.39,30,000/- already paid by the college. We have gone through the order dated 30-07-2019 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. 8. The ASC has considered the following material/documents to reach its conclusion regarding the amount payable by the college to the student / complainant. W.P (C) No.29379/2019 -7- |**Sl. No.**|**Particulars**|**Document**<br>**number referred**<br>**to in the order of**<br>**the ASC**| |---|---|---| |1|Proof affidavit filed by Smt. Pathumma Beevi,<br>mother of the student / complainant.|Produced as<br>Ext.P9 in this<br>writpetition| |2|Copy of personal ledger report on term deposit<br>of Smt. Pathumma Beevi.|A1| |3|Fixed Deposit receipt issued by Police Co-<br>operative Society.|A2| |4|Certificate issued by Thiruvananthapuram<br>Service Co-operative Bank|A3| |5|Certificate issued by Pension payment Sub<br>Treasury, Thiruvananthapuram.|A4| |6|Pass book of Treasury Savings Bank<br>Vallayambalam.|A5| |7|Certificate issued by Pension payment Sub<br>Treasury, Thiruvananthapuram regarding<br>withdrawal of Rs.3,00,000/- by one Dr. K.<br>Udayavarman.|A6| |8|Certificate issued by Karunagapally Taluk LIC<br>Agents Co-operative Society.|A7| |9|Certificate issued by Pallikkal Farmers' Service<br>Co-operative Bank regarding amount of prized<br>chit of one Sharafudheen.|A8| |10|Certificate issued by Pallikkal Farmers' Service<br>Co-operative Bank regarding amount of prized<br>chit of one Hashim.|A9| 9. As already noticed, the ASC passed Ext.P10 order directing the college to refund an amount of Rs.25,39,000/- to the student. This figure was arrived at by accepting the case mother of the student that she had paid a total sum of Rs.42.17 lakhs to the college authorities. After deducting a sum of Rs.19,65,000/- which was the amount collected as fee W.P (C) No.29379/2019 -8- (including hostel fee), the Committee held that the amount collected over and above the fee was Rs.22,52,000/-. 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|Rs19,65,000/-| |2|Twice the amount collected over and above<br>the fee(Rs.22,52,000 x 2)|Rs.45,04,000/-| |3|Amount alreadyrefunded|Rs.39,30,000/-| |4|Balancepayable(1 + 2)- 3|Rs.25,39,000/-| 10. According to the college, they have received only Rs.18 lakhs towards fee and Rs.1,65,000/- towards hostel fee. In order to prove the source of Rs.42.17 lakhs, the proof affidavit referred to above had been filed by the mother of the student _inter alia_ stating the source of funds for raising the total amount of Rs.42.17 lakhs. The Committee accepted the version with reference to Exts. A1 to A9. 11. We have perused the documents referred to as Exts.A1 to A9 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.42,17,000/- 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. W.P (C) No.29379/2019 -9- Exhibit A1 will show that on 24-08-2016 the mother of the student had withdrawn Rs.5 lakhs from out of the term deposit from Karukachal Urban Co-operative Society. Exhibit A2 shows that the mother of the student had closed fixed deposits with the Police Co-operative Society and had withdrawn a total amount of Rs.11 lakhs. Exhibit A3 would show that the mother of the student had closed her fixed deposit with the Thiruvananthapuram Service Co-operative Bank and had withdrawn a total amount of Rs.2.25 lakhs. Exhibit A4 certificate issued by Pension Payment Sub Treasury would show that the mother of the student had withdrawn Rs.5 lakhs on 25-07-2016. Exhibit A5 would reveal the withdrawal of a sum of Rs.4,50,000/- on 24-04-2015. This withdrawal is almost a year and half before the alleged dates on which the payment is stated to have been made to the college. It is the case of the mother of the student that she had obtained a loan of Rs.3.5 lakhs from one Hashim who is stated to be her nephew. There is evidence in the form of Ext.A9 to show that Sri. Hashim would have had the funds at the relevant point of time. Similarly the mother of the student has a case that she has borrowed another Rs.7 lakhs from one Sharafudheen. There is evidence in the form of Ext.A8 to show that Sri. Sharafudheen would have had the funds at the relevant point of time. The mother of the student also claimed that she had borrowed an amount of Rs.3 lakhs from Dr. Udayavarman who was her colleague in Government Service. Exhibit A6 certificate shows that Dr. Udayavarman W.P (C) No.29379/2019 -10- had withdrawn a sum of Rs.3 lakhs from the Pension Payment Treasury on 22-09-2016. Dr. Udayavarman has also given a statement titled 'consentcum-declaration letter' stating that he had lent the aforesaid amount of Rs.3 lakhs to his former colleague, the mother of the student. The mother of the student also claims that she receives a sum of Rs.2 lakhs from her elder sister Smt. Rukkiya and there is proof in the form of Ext.A7 certificate that Smt. Rukkiya had withdrawn Rs.2 lakhs from Karunagapally Taluk LIC Agents' Co-operative Society. As already noticed, it is the claim of the mother of the student that she had paid a total of Rs.42.17 lakhs to the college. We have no hesitation to accept the case of the mother of the student with reference to the documents produced as Exts.A1, A2, A3, A4, A6, A7, A8 and A9. Though Exts.A6, A7, A8 and A9 relate to amounts stated to have been borrowed / gifted, considering the relationship of the parties from whom the amounts are raised, we are of the opinion that the same can be accepted as a source of funds for the payment made to the college. However we cannot accept the case of the mother of the student that the amount withdrawn by her on 24-04-2015 from the Treasury Savings Bank, Vellayambalam should be accepted for the reason that this amount is seen withdrawn almost a year and a half before the alleged date of payment to the college. There is no explanation as to why those amounts (Rs.4.50 lakhs) were retained as cash with the mother of the student for almost one and half years. We therefore find that the mother of W.P (C) No.29379/2019 -11- the student had the source for payment of a total of Rs.38.75 lakhs covered by the documents referred to in the order of the Committee. For reasons already indicated the explanation regarding the availability of Rs.4 lakhs from out of the amount withdrawn in cash on 24-04-2015 cannot be accepted. Therefore after reducing the amount of fee, of Rs.19,65,000/-, the amount additionally collected will be Rs.19,10,000/-. 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.19,65,000/-| |2|Double the amount collected over and above<br>the fee(Rs.19,10,000/- x 2)|Rs.38,20,000/-| |3|Total amount payable in terms of the direction<br>of the Supreme Court|Rs.57,85,000/-| |4|Amount already paid|Rs.39,30,000/-| |5|Balance amountpayable|Rs.18,55,000/-| Thus this writ petition will stand allowed in part. The college shall refund an amount of Rs.18,55,000/- to the 1[st] 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 2[nd] respondent. **Sd/A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** **AMG** W.P (C) No.29379/2019 -12- ## **APPENDIX** ## **PETITIONER'SEXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.08.2018.** - **EXHIBIT P2 TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL(C) NO.23225/2018 OF THE HON'BLE SUPREME COURT DATED 29.08.2018.** - **EXHIBIT P3 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN M.A.NO.2354/2018 IN SLP(C) NO.23225/2018 DATED 4.10.2018.** - **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN CONTEMPT PETITION NO.908/19 IN SLP(C) NO.23225/2018 DATED 4.10.2018.** - **EXHIBIT P5 TRUE COPY OF THE COMPLAINT 28.11.2018. EXHIBIT P6 TRUE COPY OF THE STATEMENT FILED BEFORE THE RESPONDENT NO.2** - **EXHIBIT P7 TRUE COPY OF THE RECEIPT ISSUED BY THE COLLEGE. EXHIBIT P8 TRUE COPY OF THE UNDERTAKING DATED 18.01.2018. EXHIBIT P9 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH DEPOSITION.** - **EXHIBIT P10 TRUE COPY OF THE ORDER OF THE ORDER OF THE 2ND RESPONDENT IN ASC(P)91/18/HO/TVMP/MBBS/KMC DATED 30/07/2019.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(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.**