W.P.(C) No.26121/2019 (M) – The Principal Kannur Medical College Anjarakkandi v. 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.** **FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942** ## **WP(C).No.26121 OF 2019(M)** ## **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 FEGULATORY 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 MOHAMED SHYJAL HAMEED S/O HAMEED, EROOTH HOUSE, CHEMMANIYOOR PO, VIA PATTIKKAD, MELATTOOR, MALAPPURAM - 679 326 R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES R2 BY ADV. SRI.KALEESWARAM RAJ R2 BY ADV. SRI.VARUN C.VIJAY R2 BY ADV. KUM.A.ARUNA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0306-2020, THE COURT ON 12-06-2020 DELIVERED THE FOLLOWING:** W.P (C) No.26121/2019 -2- ## **J U D G M E N T** ## Dated this the 12[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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed), through an order dated 14.11.2016.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.26121/2019 -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 Mohamed Shyjal Hameed. W.P (C) No.26121/2019 -4- 3. 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. 4. We have heard Sri. Abdul Raoof P., Learned Counsel for the petitioner, Smt. Mary Benjamin, Learned Standing Counsel for the 1[st] respondent (the Admission and Fee Regulatory Committee) and Sri. Kaleeshwaram Raj, 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 W.P (C) No.26121/2019 -5- 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.11.65 lakhs and therefore no further liability could be fastened on the college since an amount of Rs.23.30 lakhs being the double the amount of Rs.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 material 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. He would also contend that the exercise of determination of the amount to be refunded to the students was in terms of the order of the Supreme Court and therefore we must not exercise jurisdiction under Article 226 of the Constitution. The question of maintainability of this Writ Petition under Article 226 of the Constitution of W.P (C) No.26121/2019 -6- 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. Mr. Kaleeswaram Raj would then invite our attention to the judgment of the Supreme Court in _**Vasavi Engineering College Parents Association V. State of Telengana and others**_ reported in _**(2019) VII SCC 172**_ and specifically to paragraph 16 of that judgment which reads as under: _“16. Judicial review, as is well known, lies against the decisionmaking process and not the merits of the decision itself. If the decision-making process is flawed inter alia by violation of the basic principles of natural justice, is ultra vires the powers of the decision maker, takes into consideration irrelevant materials or excludes relevant materials, admits materials behind the back of the person to be affected or is such that no reasonable person would have taken such a decision in the circumstances, the court may step in to correct the error by setting aside such decision and requiring the decision maker to take a fresh decision in accordance with the law. The Court, in the garb of judicial review, cannot usurp the jurisdiction of the decision-maker and make the decision itself. Neither can it act as an appellate authority of TAFRC.”_ There can be no doubt that judicial review is to be confined to the above parameters except in exceptional circumstances where even disputed questions of fact can be determined in proceedings under Article 226. In W.P (C) No.26121/2019 -7- the facts of this case we are essentially concerned with the question as to whether the ASC had determined the issue on the basis of the directions issued by the Supreme Court and as to whether the ASC had taken into consideration any irrelevant or inadmissible material to reach its conclusions. We are of the firm view that such exercise is within the parameters of judicial review recognized in _**Vasavi**_ (supra). 5. We must then 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**_ . 6. The ASC has, on 25-05-2019 determined the amount payable to student/complainant to be a sum of Rs.43,35,000/- after deducting the amount of Rs.23,30,000/- already paid by the college. We have gone through the order dated 25-05-2019 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. W.P (C) No.26121/2019 -8- 7. The ASC has considered the following material/documents to reach its conclusion regarding the amount payable by the college to the student / complainant. |**Sl. No.**|**Particulars**|**Document number**<br>**referred to in the**<br>**order of the ASC**| |---|---|---| |1|Proof affidavit of Sri. Hameed E. (father of the<br>student / complainant).|Produced as<br>Ext.P5 in this<br>writpetition| |2|Statement of SB Account of Sri. Hameed<br>(father of the student / complainant) with State<br>Bank of India.|A1| |3|Statement of OD Account of Sri. Hameed<br>(father of the student / complainant) with<br>Malappuram District Co-operative Bank .|A2| |4|Statement of SB Account of Sri. Hameed<br>(father of the student / complainant) with<br>Malappuram District Co-operative Bank|A3| 8. As already noticed, the ASC passed Ext.P6 order directing the college to refund an amount of Rs.43,35,000/- 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 Rs.39.15 lakhs to the college authorities. After deducting a sum of Rs.11,65,000/- which was the fee (including hostel fee), the Committee held that the amount collected over and above the fee was Rs.27,50,000/-. 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. W.P (C) No.26121/2019 -9- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fee includinghostel fee|Rs.11,65,000/-| |2|Twice the amount collected over and above<br>the fee(Rs.27,50,000 x 2)|Rs.55,00,000/-| |3|Amount alreadyrefunded|Rs.23,30,000/-| |4|Balancepayable(1 + 2)- 3|Rs.43,35,000/-| 9. According to the student/parent, an amount of Rs.8,00,000 was paid on 08-08-2016, another Rs.28,00,000/- on 20-09-2016 and Rs. 1.15 lakhs on 01-10-2016, thus making the total of Rs.39.15 lakhs. According to the college, they have received only Rs.10 lakhs towards fee and Rs.1,65,000/- towards hostel fee. In order to prove the source of Rs.39.15 lakhs, the affidavit referred to above had been filed by the father of the student _inter alia_ stating their source of funds for raising the total amount of Rs.39,15,000/-. The Committee accepted the version with reference to Exts.A1 to A3 and the submission of the father of the student that he had received back a sum of Rs. 13.5 lakhs from MES Medical College where he had “booked” a seat by paying Rs.13.5 lakhs in the previous year. It was his case that the sum was retained by him in cash in his bank locker though in cross examination he could not refer to the locker number or give any explanation to a specific question as to why his account was not been debited with the locker rent. It is the case of the petitioner that the amount of Rs.2,63,000/- shown in A1 document referred to above is seen to be a W.P (C) No.26121/2019 -10- transfer for closure of a gold loan and that too cannot be seen as a withdrawal for payment to the college. 10. We have perused the documents referred to as Exts.A1 to A3, the affidavit filed by Sri. Hameed in order to determine whether there was acceptable proof regarding the source of funds to have paid a sum of Rs.39,15,000/- 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. Exhibit A1 would prove that the account of the father of the student had been debited with a sum of Rs.2,63,081/on 15-10-2015. This amount cannot be accepted as a source of fund for the payment made to the college since this amount seems to have been debited in 2015 and the narrative in the account refers the transaction to be one for “GL closure”. However there are two cash withdrawals on 19-07- 2016 and 26-08-2016 totaling to Rs.75,000/-. Exhibit A2 will show that there has been substantial cash withdrawal in between the period from April 2016 to September 2016. A total of these cash withdrawals comes to Rs.22,00,000/- excluding a sum of Rs.30,000/- withdrawn on 21-06-2016. Exhibit A3 will show that there have been cash withdrawals of Rs.13,72,000/- between 20-01-2015 and 10-04-2015. These cash withdrawals is stated to be the source of Rs.13.5 lakhs paid to MES college in 2015. Thus the father of the student had substantial funds at his W.P (C) No.26121/2019 -11- disposal. Naturally when amounts are received in addition to the regular fee, no receipt would be issued. Therefore, the source of fund is the only method for any person to prove their claim. We find that there is sufficient source for the availability of a total of Rs.36,25,000/- (Rs.13.5 lakhs from the money returned by MES + Rs.22,00,000/- withdrawn from the over draft account (OD account with Malappuram District Co-operative Bank and Rs.75,000 from the savings bank account with SBI) 11. There is no dispute about the fact that Rs.11,65,000/- was received towards tuition fee and hostel fee which means that the balance amount is collected over and above the fee payable. Therefore Rs.24,60,000/- would be the additional amount collected. The amounts payable/refundable by the college is redetermined as under. |Sl. No.|Particulars|Amount| |---|---|---| |1|Fees includinghostel fee|Rs.11,65,000/-| |2|Double the amount collected over and above<br>the fee(Rs.24,60,000/- x 2)|Rs.49,20,000/-| |3|Total amount payable in terms of the direction<br>of the Supreme Court|Rs.60,85,000/-| |4|Amount already paid|Rs.23,30,000/-| |5|Balance amountpayable|Rs.37,55,000/-| Exhibit P6 order shall stand modified accordingly. In the result the writ petition is allowed in part. The college shall refund an amount of Rs.37,55,000/- to the 2nd respondent without any further delay and at any rate within four weeks from the date of receipt of a copy of this judgment, W.P (C) No.26121/2019 -12- failing which further steps in accordance with law shall be taken by the 1st respondent. **Sd/A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** **==> picture [22 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> AMG<br>**----- End of picture text -----**<br> W.P (C) No.26121/2019 -13- ## **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 DATE 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 COMPLAINT DATED 18.7.2018 FORWARDED TO THE 1ST RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE STATEMENT FILED BEFORE THE 1ST RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH DEPOSITION** - **EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT IN ASC (P) 91/18/HO/TVPM/MBBS/KMC DATED 25.5.2019** - **RESPONDENTS' EXHIBITS:** - **EXHIBIT R2(a) TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT WITHOUT ANNEXURES BEFORE THE HON'BLE SUPREME COURT DATED 4.9.2018.** - **EXHIBIT R2(b) TRUE COPY OF THE RELEVANT PAGES OF THE ORDER DATED 19.9.2017 IN CRL M.C NO.1161/2017 PASSED BY THE COURT OF SESSIONS, THALASSERRY.**