W.P.(C) Nos.13501/2019 and 19207/2019 (Vishnu Ayurveda Medical College and ten students v. Admission Supervisory Committee for Professional Colleges in Kerala, Kerala University of Health Sciences, State of Kerala)

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 21ST DAY OF AUGUST 2019 / 30TH SRAVANA, 1941 WP(C).No.13501 OF 2019(K)** ## **PETITIONER/S:** **VISHNU AYURVEDA MEDICAL COLLEGE GOVT. PRESS P.O., KULAPPULLY, SHORNUR, PALAKKAD, REPRESENTED BY ITS DIRECTOR, P.RAMACHANDRAN NAIR. BY ADVS. SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN** ## **RESPONDENT/S:** |**1**|**ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL**| |---|---| ||**COLLEGES IN KERALA,T.C.15/1553-A, PRASANTHI**| ||**BUILDINGS, M.P.APPAN ROAD, VAZHUTHACAUD,**| ||**THIRUVANANTHAPURAM- 695014, REPRESENTED BY ITS**| ||**CHAIRMAN.**| |**2**|**KERALA UNIVERSITY OF HEALTH SCIENCES,**| ||**MULAMKUNNATHUKAVU, MEDICAL COLLEGE P.O., THRISSUR**| ||**DISTRICT, PIN- 680596, REPRESENTED BY ITS**| ||**REGISTRAR.**| ||**R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY**| ||**COMMITTEE FOR PROF. COLLEGES**| ||**R2 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND**| ||**ALLIED SCIENCE**| ## **OTHER PRESENT:** **SPL.GP SRI.M.A.ASIF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.08.2019, ALONG WITH WP(C).19207/2019(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.13501 & 19207/2019 2 ## **HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 21ST DAY OF AUGUST 2019 / 30TH SRAVANA, 1941** **WP(C).No.19207 OF 2019(A)** ## **PETITIONER/S:** - **1 AJEESHA.P.S AGED 20 YEARS D/O. P.S.PEERSHA,PEERSHA BHAVAN, LIBERTY STREET, PATTAMBI** - **2 AKARSHA .M.ANIL D/O. ANIL M.D., MANGATTUNJALIL(H), KUMARAPPANAL POST, VARAVOOR, THRISSUR DISTRICT** - **3 BHAGYA SURESH D/O. SUJESH .P.., SREEBHAGYA, VAZHATHOPPE PUTHENKADA, PIRAVATHOOR, KOLLAM-680 695** - **4 BHARATH KRISHNA .M., S/O. MANOJ.P., LAKSHMI NIVAS, POOTHOLE P.O., POOTHOLE ROAD, THRISSUR,PIN-680 004** - **5 HAMIDHA.K., D/O. KASSIM KUNNATH, KUNNATH (H), ARIYOOR P.O., MANNARKKAD, PALAKKAD, PIN-678 583** - **6 MALAVIKA.N.S., D/O. SHAJU.N.A., NELLIPARAMBIL (H), VARAKKARA PULINCHODU, VARANTHARAPPILLY P.O., THRISSUR,PIN-680 303** - **7 RESHMA .M., D/O. RAVEENDRAN M., MEMPALLY HOUSE,KUMBIDI P.O.,PALAKKAD,PIN-679 553** - **8 SANDEEP.S., S/O. SUNIL KUMAR T.P., THAZHATHE** W.P.(C) Nos.13501 & 19207/2019 3 ## **PURAKKAL (H), VARODE .O., OTTAPALAM, PIN-679 102** - **9 VRINDHA .P.A., D/O. AJITH KUMAR P.K., PERUMBAL VADAKKAPURAKKAL 9H), NANNAMMUKKU (S) P.O.,KALLOORMA, MALAPPURAM,IN-679 575** - **10 GAYATHRI, D/O. VIJAYAN.C., MOOCHIKKAL (H), VILAYANOOR (PO),THENKURISSI, PALAKKAD,PIN-678 671** **BY ADVS. SRI.S.RADHAKRISHNAN SRI.S.RAJ MOHAN SMT.R.ANJALI SRI.ADITYA THEJUS KRISHNAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, THIRUVANANTHAPURAM-695 001** - **2 ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, REPRESENTED BY ITS CHAIRMAN, T.C.15/1553-A,PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHACAD,THIRUVANANTHAPURAM-695 014** - **3 KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR, MULAMKUNNATHUKAVU, MEDICAL COLLEGE P.O., THRISSUR-680 596** - **4 VISHNU AYURVEDA MEDICAL COLLEGE, REPRESENTED BY ITS DIRECTOR, GOVT. PRESS P.O., KULAPPULLY, SHORNUR, PALAKKAD-679 122** - **R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES SPL.GP SRI.M.A.ASIF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.08.2019, ALONG WITH WP(C).13501/2019(K), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.13501 & 19207/2019 4 **“CR”** ## **JUDGMENT** ## **V.G.ARUN, J.** The writ petitions are filed by a Private Self-financing Ayurveda Medical College and 10 BAMS students of that College, challenging an order issued by the Admission and Fee Regulatory Committee for Medical Education in Kerala (“the Committee” for brevity). W.P.(C) No.13501 of 2019 is filed by the College and W.P.(C) No.19207 of 2019 is filed by the students, whose admission to the 2018-19 BAMS course has been withheld by the Committee. Out of the 10 students, 9 were admitted under NRI quota and the 10[th] , to a merit lapsed seat. By the impugned order, the Committee found that the College had not admitted candidates through online process and had not obtained any direction from the Committee before taking admission under the NRI and merit lapsed seats. W.P.(C) Nos.13501 & 19207/2019 5 2. The Government of Kerala had, through G.O.(Rt) No.383/2018/Ayush dated 9.7.2018 entrusted the Commissioner for Entrance Examinations (CEE) to allot 85% seats from the merit list prepared by the CEE. By order dated 17.7.2018, the Government permitted the Self-financing Ayurveda Medical Colleges to admit NRI students to the balance 15% seats from the NEET Merit list. The Committee has observed that except the petitioner College, all other private Self-financing Ayurveda Colleges in the State had submitted their prospectus before the Committee for approval and the same were approved on 26.7.2018. It is also observed that the petitioner College had neither submitted its prospectus for approval nor sought permission at any stage of the admission process. It was only after completion of the admission process that the Principal of the College submitted the list of admitted students. Out of the 60 students admitted, W.P.(C) Nos.13501 & 19207/2019 6 the Committee, after verification of the documents, approved the admissions of 50 students admitted to the Government quota. On scrutiny of the documents of the 9 students admitted under NRI quota, the Committee found that the students had not submitted online applications, exercising their options. As far as the lone student admitted to the merit lapsed seat is concerned, the Committee found that the college had not sought its previous approval, which is mandatory for effecting admission to merit lapsed seats. The admission of the 10 students was hence withheld and the Principal of the College was directed to explain the reason for admitting those candidates without following the prescribed procedure. 3. The challenge against that order of the Committee is on the ground that after admission, the College had produced all requisite documents to prove the entitlement of the 10 students for admission and the Committee had not W.P.(C) Nos.13501 & 19207/2019 7 found any student to be lacking the requisite qualification. It is also contended that till the previous year, there was no requirement for submission of online applications and the procedure adopted by the Colleges was to admit students in the management and NRI quotas and thereafter submit the list of admitted students with all supporting documents. It is further contended that the Committee had not issued any direction to the College to invite online applications from candidates seeking admission under the NRI quota and to obtain permission from the Committee before admitting students in the NRI quota and to merit lapsed seats. According to the petitioners, admission to the NRI quota and the merit lapsed seat was effected after giving due publicity through newspapers and hence, no prejudice was caused to any person. 4. Heard Sri. B.S.Swathi Kumar and Sri. S.Rajmohan, W.P.(C) Nos.13501 & 19207/2019 8 the learned counsel appearing for the College and the students respectively, Sri. M.A.Asif, learned Special Government Pleader and Smt. Mary Benjamin, learned Standing Counsel for the Committee. 5. The tussle between the Government and the Managements of Private Self-financing Institutions for control in the matter of admission, fees and conduct of courses has been pending since long and have resulted in various judgments of the Apex Court. In **T. M. A Pai Foundation v. State of Karnataka [(2002) 8 SCC 481]** , the Apex Court, after an elaborate consideration of the fundamental right of minorities, under Article 30 of the Constitution of India to establish and administer educational institutions of their choice, went on to hold that when it comes to higher education, that too in professional institutions, merit has to be the sole criteria. It was held that merit for admission to W.P.(C) Nos.13501 & 19207/2019 9 professional and higher education colleges is usually determined by either the marks that the student obtained at the qualifying examinations or school leaving certificate stage followed by the interview, or by a Common Entrance Test conducted by the institution, which, in the case of professional colleges, shall be a Common Entrance Test (CET) conducted by Government agencies. The Apex Court permitted the Government to frame regulations, in order to ensure that the CET conducted for admission to unaided private professional educational institutions is fair, transparent and merit based. Paragraphs 67 and 68 of the judgment, which permitted the framing of regulations is extracted below:- “67. We now come to the regulations that can be framed relating to private unaided professional institutions. 68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their W.P.(C) Nos.13501 & 19207/2019 10 administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and postgraduation non-professional colleges or institutes." 6. After the authoritative pronouncement in _**TMA Pai**_ **,** by an eleven Judge Bench of the Honourable Supreme Court, another batch of writ petitions, with respect to the extent of W.P.(C) Nos.13501 & 19207/2019 11 autonomy in fixing fee structure and making admissions in unaided private professional educational institutions, was moved before the Apex Court, resulting in the judgment in **Islamic Academy of Education v. State of Karnataka [(2003) 6 SCC 697]** . In _**Islamic Academy,**_ the Apex Court reiterated the position that admissions must be based on merit, since it was impossible to control profiteering and or charging of capitation fees unless admission was on merit. It was therefore held that the management could select students either on the basis of CET conducted by the State or Association of all Colleges for a particular time, for example, medical, engineering or technical etc. The State Governments were directed to appoint permanent committees to ensure that the test, if any, conducted by the Association of Colleges was fair and transparent. The issue was again considered by the Apex Court in **P.A.Inamdar v. State of Maharashtra** W.P.(C) Nos.13501 & 19207/2019 12 **[(2005) 6 SCC 537** ]. In _**P.A.Inamdar**_ , it was held that two committees for monitoring admission procedure and determining fees structure was permissible as part of regulatory measures aimed at protecting the student community as a whole as also the minority themselves in maintaining required standards of professional education on non-exploitative terms. It was left to the Central Government and the State Governments to come out with a detailed well thought out legislation, setting up a suitable mechanism for regulating admission procedure and fee structure. 7. In the wake of the decisions of the Apex Court, the State Government enacted 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 (“the Act 19 of 2006” for brevity). W.P.(C) Nos.13501 & 19207/2019 13 Section 2 (o) of the Act 19 of 2006 defines Non-Resident Indian Seats as seats reserved for children or wards or dependents of Non-resident Indian, to whom admission is given by the management in a fair, transparent and nonexploitative manner on the basis of fees as may be prescribed. Section 4 of the Act provides for constitution of an Admission Supervisory Committee to supervise and guide the process of admission of students to unaided Colleges or Institutions. As per Section 4(6), the Committee shall supervise and guide the entire process of admission of students to the unaided professional colleges or institutions with a view to ensure that the process is fair, transparent, merit-based and nonexploitative. It is in exercise of this power that the Committee required all unaided professional Colleges to submit their prospectus, the applications for admission received from students along with supporting documents and the final list of W.P.(C) Nos.13501 & 19207/2019 14 admitted students, for its scrutiny and approval. As such, no deviation from this process is permissible. 8. As far as the admission to Kerala Engineering, Architecture and Medical Courses for the year 2018-19 is concerned, the CEE has issued the prospectus for 2018, which has been approved by the Government as per G.O.(MS) No.39/2018/H.Edn. dated 30.1.2018. In the introductory part of the prospectus itself, it is stated that the candidates are required to go through the prospectus carefully and acquaint themselves with all the relevant information relating to the examinations/allotments. The candidates are also requested to visit the websites of the CEE regularly for notification and announcements. Clause 1.3.3. of the Prospectus details the Medical and allied Courses, which include the Bachelor of Ayurvedic Medicine and Surgery (BAMS) course. Clause 2.2 dealing with categorisation of seats in Self-financing W.P.(C) Nos.13501 & 19207/2019 15 ## Institutions reads as under:- ## “ **2.2 Categorization of Seats in Self-financing Institutions:** The categorization of seats in Self-financing Colleges run by institutions under Govt. control and other Private Selffinancing Colleges will be notified separately. “As per the orders of the Hon'ble Supreme Court of India dated:9.05.2017 on WP(C) No.267/2017, the allotments/admissions to the State Quota seats in all the Government as well as Private Self Financing Medical and Dental Colleges shall be done through a Common Counselling to be conducted by the Commissioner for Entrance Examinations. The Common Counselling will include NRI seats in Self Financing Medical & Dental Colleges and Minority Community Quota seats in Private Self Financing Medical & Dental Colleges having Minority Status.” 9. Clause 7.1 categorically state that online submission of applications through the website www.cee.kerala.gov.in is required, in order to apply for admission to all the courses. Clause 7.3 dealing with mode of payment of application fee states that fee may be paid online or through e-chalan. Detailed instructions regarding online submission of W.P.(C) Nos.13501 & 19207/2019 16 application is given under Clause 7.4. After receipt of the online applications and conduct of examinations the rank list of candidates is published by the CEE. As per Clause 11.4.6, only those candidates included in the different rank lists prepared and published by the CEE for 2018 are eligible to register their options for the stream concerned. Once the candidates exercise their options online, the Centralised Allotment Process (CAP) for allotment to the various courses and colleges under the Engineering/ Architecture/ Pharmacy/ Medical Streams in the State, based on the options submitted by the candidates who have been included in the rank list for the year 2018, is conducted by the CEE. 10. As far as admissions to NRI seats in self-financing professional colleges is concerned, notifications are issued sufficiently early containing details regarding the eligibility criteria and the documents to be submitted along with the W.P.(C) Nos.13501 & 19207/2019 17 application. The candidates opting for NRI admission have to submit online application along with requisite documents before the last date notified by the CEE. After scrutiny of the documents, the candidates are given an opportunity to cure the defects, if any, within a date prescribed by the CEE. Only those applications without defects received within time are considered for allotment under the NRI quota, in accordance with the options exercised by the candidates. On admission of the candidates, the documents submitted by the admitted candidates are placed before the Committee and if, on verification, the Committee finds any document to be defective, the admission of the candidate is liable to be withheld. 11. In **Poomulli Neelakandan Namboothiri Memorial Ayurveda College v Admission Supervisory Committee (2019 (3) KLT 929),** we have held that under no W.P.(C) Nos.13501 & 19207/2019 18 circumstance can an expansive meaning be given to the term ‘dependent’ incorporated in section 2(o) of Act 19 of 2006 and only candidates dependent on the sponsor are entitled for admission to NRI seats. This aspect also has to be verified by the Committee before the candidates are admitted. Therefore, only those candidates who have submitted their applications and documents online, within the time prescribed by the CEE, are eligible for admission to NRI seats, subject to approval by the Committee. This being the position, the 9 petitioners in W.P.(C) No.19207 of 2019, whose admissions have been withheld by the Committee, for the reason of not having submitted online applications, have no legal right to challenge the decision. 12. The process of spot admission to the vacant seat, to which the 10[th] petitioner in W.P.(C) No.19207 of 2019 was admitted, having been done without prior approval from the W.P.(C) Nos.13501 & 19207/2019 19 Committee, which is a mandatory requirement, was also rightly interfered by the Committee. The contention that the spot admission was conducted after giving due publicity through newspapers and that prior approval from the Committee was not obtained due to dearth of time are liable to be rejected. Hence, we find no reason to interfere with the decision of the Committee to withhold the admission of the petitioners in W.P.(C) No.19207 of 2019 and do not find any merit in in W.P. (C) No.13501 of 2019 filed by the College. In the result, the writ petitions are dismissed. No order as to costs. **Sd/-** ## **K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/21.08 W.P.(C) Nos.13501 & 19207/2019 20 ## **APPENDIX OF WP(C) 13501/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.AFRC 100/17/BAMS/VAC DATED 12.06.2018.** **EXHIBIT P2 TRUE COPY OF THE PAPER PUBLICATION MATHRUBHUMI DAILY DATED 22.07.2018.** - **EXHIBIT P3 TRUE COPY OF THE GUIDE LINE NO.CEE/5500/2017/KEAM-2018/TAI DATED 27.10.2018.** **EXHIBIT P4 TRUE COPY OF THE NOTIFICATION NO.ASC 100/18/BAMS/BSMS/NOTIFICATION DATED 08.02.2019.** **EXHIBIT P5 TRUE COPY OF THE LIST OF ADMITTED STUDENTS FOR B.A.M.S COURSE UNDER NRI QUOTA 2018-19 DATED 21.02.2019.** **EXHIBIT P6 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 26.02.2019.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.AFRC 100/18/BAMS/VAMC DATED 02.04.2019 OF THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE CASH RECEIPT NO.3399 DATED 22/08/2018 ISSUED BY THE PETITIONER** - **EXHIBIT P9 TRUE COPY OF THE CASH RECEIPT NO.3401 DATED 23-08-2018 ISSUED BY THE PETITIONER** **EXHIBIT P10 TRUE COPY OF THE CASH RECEIPT NO.3404 DATED 23-08-2018 ISSUED BY THE PETITIONER** W.P.(C) Nos.13501 & 19207/2019 21 - **EXHIBIT P11** **TRUE COPY OF THE CASH RECEIPT NO.3405 DATED 28-08-2018 ISSUED BY THE PETITIONER** - **EXHIBIT P12 TRUE COPY OF THE CASH RECEIPT NO.3408 DATED 29-08-2018 ISSUED BY THE PETITIONER** - **EXHIBIT P13 TRUE COPY OF THE CASH RECEIPT NO.3416 DATED 03-09-2018 ISSUED BY THE PETITIONER** - **EXHIBIT P14 TRUE COPY OF THE CASH RECEIPT NO.3417 DATED 05-09-2018 ISSUED BY THE PETITIONER** - **EXHIBIT P15 TRUE COPY OF THE CASH RECEIPT NO.3418 DATED 05-09-2018 ISSUED BY THE PETITIONER** - **EXHIBIT P16 TRUE COPY OF THE CASH RECEIPT NO.3419 DATED 10-09-2018 ISSUED BY THE PETITIONER** - **EXHIBIT P17 THE TRUE COPIES OF THE PAY-SLIP EVIDENCING THE PRESENTATION OF THE DEMAND DRAFT** - **EXHIBIT P18 TRUE COPY OF LETTER NO.CEE/5500/2017/KEAM 2018/TAI DATED 27.10.2018** - **EXHIBIT P19 TRUE COPY OF THE APPLICATION FORM FOR BAMS COURSE 2018-19 SUBMITTED BY THE GAYATHRIV DATED 31.10.2018** - **EXHIBIT P20 TRUE COPY OF THE CASH RECEIPT NO. 3453 DATED 31.10.2018 ISSUED BY THE PETITIONER** - **EXHIBIT P21 TRUE COPY OF THE LETTER NO. CEE/550/2017 KEAM -2018/TAI DATED 01.11.2018** W.P.(C) Nos.13501 & 19207/2019 22 ## **APPENDIX OF WP(C) 19207/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT AFRC 100/ 18/BAMS/VAMS DATED 02.04.2019**