WP(C).Nos. 26470 of 2019 (G) and 28589 of 2019 (W) — Principal Kannur Medical College, Anjarakandy, Kannur vs Admission Supervisory Committee for Professional Colleges in Kerala and Others; Mohammed Shaamin vs Principal Kannur Medical College and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942** **WP(C).No.26470 OF 2019(G)** ## **PETITIONER:** **THE PRINCIPAL KANNUR MEDICAL COLLEGE,ANJARAKANDY, P.O.MAMBA,KANNUR-670612.** **BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS:** **1 MOHAMMED SHAAMIN S/O THAHA KALEELL,RESIDING AT SHAAMINS,MANKAMKUZHY.P.O, MAVELIKKARA,ALAPPUZHA-688502. 2 THE ADMISSION AND FEE REGULATORY COMMITTEE, FOR PROFESSIONAL COLLEGES IN KERALA,T.C.15/15534,PRASANTHI BUILDINGS,M.P.APPAN ROAD,VAZHUTHACAUD,THIRUVANANTHAPURAM695014,REPRESENTED BY THE CHAIRMAN.** **R1 BY ADV. SRI.M.R.ABHILASH R1 BY ADV. SRI.V.VISAL AJAYAN R2 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1106-2020, ALONG WITH WP(C).28589/2019(W), THE COURT ON 16-06-2020 DELIVERED THE FOLLOWING:** WP(C) Nos.26470 & 28589/19 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942** ## **WP(C).No.28589 OF 2019(W)** ## **PETITIONER:** **MOHAMMED SHAAMIN AGED 22 YEARS S/O.THAHA KALEEL, R/O.SHAAMINS, MANKAMKUZHY(PO), ALLEPPEY DISTRICT, KERALA STATE-690558.** **BY ADVS. SRI.M.R.ABHILASH SMT.A.SREEPRIYA SRI.V.VISAL AJAYAN** ## **RESPONDENTS:** - **1 THE PRINCIPAL, KANNUR MEDICAL COLLEGE, (POST), KANNUR (DISTRICT), KERALA-670612.** - **2 M.ABDUL JABBAR, CHAIRMAN, KANNUR MEDICAL COLLEGE, KANNUR MEDICAL COLLEGE CAMPUS, ANJARAKANDY, KANNUR, PIN-670612.** - **3 THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, PRASANTHI BUILDING, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA-695014.** WP(C) Nos.26470 & 28589/19 -:3:- - **4 KERALA UNIVERSITY OF HEALTH, REGISTRAR MULANGUNNATHUKAVU, MEDICAL COLLEGE.P.O., THRISSUR (DISTRICT), KERLA680596.** - **5 COMMISSIONER FOR ENTRANCE EXAMINATIONS, GOVERNMENT OF KERALA, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM (DISTRICT), KERALA-695001.** **R3 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES R4 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE R5 BY SRI.K.K.RAVINDRANATH, ADDL.ADVOCATE GENERAL SPL.GP SRI. M.A. ASIF BY ADV. RAJ CAROLIN V FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-06-2020, ALONG WITH WP(C).26470/2019(G), THE COURT ON 16-06-2020 DELIVERED THE FOLLOWING:** WP(C) Nos.26470 & 28589/19 -:4:- ## **J U D G M E N T** Dated this the 16[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. 2. On 25.07.2018, there was a recommendation by the WP(C) Nos.26470 & 28589/19 -:5:- 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 of the students have not been paid/refunded in terms of the directions issued by the Supreme Court. Therefore, a further WP(C) Nos.26470 & 28589/19 -:6:- 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 WP(C) No. 26470/2019, 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 Sri.Mohammed Shaamin. 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 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 WP(C) Nos.26470 & 28589/19 -:7:- 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 heard the counsel appearing for all the parties. 6. The learned counsel for the petitioner in WP(C) No. 26470/2019 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 WP(C) Nos.26470 & 28589/19 -:8:- 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 `11.65 lakhs and therefore no further liability could be fastened on the college since an amount of `23.30 lakhs being the double the amount of `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 second 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 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. 7. We must first consider the question as to whether the WP(C) Nos.26470 & 28589/19 -:9:- 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]. 8. The ASC has, by order dated 13/06/2019 determined the amount payable to student/complainant to be a sum of `55,39,000/- after deducting the amount of `23,30,000/- already 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. 9. The parents of the student contended that they had paid a total amount of `45,17,000/- to the college authorities. After deducting a sum of `11,65,000/- which was the fee (including hostel fee), the Committee held that the amount WP(C) Nos.26470 & 28589/19 -:10:- collected was `33,52,000/-. In terms of the Supreme Court order, 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.<br>No.|Particulars|Amount| |---|---|---| |1|Fee including hostel fee|`11,65,000/-| |2|Twice the amount collected over and above<br>the fee (`33,52,000 x 2)|`67,04,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|`55,39,000/-| 10. According to the complainant, a sum of `38 lakhs was withdrawn from the NRI account of Sri.Thaha Kaleel, her husband on 15/9/2016 and it was paid to Dr.Hashim and thereafter a further amount of `7.17 lakhs was paid. This fact is disputed by the petitioner/college _inter alia_ stating that they have received only `11.65 lakhs on 24/9/2016 which was towards tuition fee and hostel fee. 11. The Committee placed reliance on the affidavit of the student's mother Smt.Nafeesath Beevi, who was examined as CW1. Ext.A1 statement of accounts have been produced to prove WP(C) Nos.26470 & 28589/19 -:11:- the source of `38 lakhs. The account statement had been issued by State Bank of India, Mahe Branch and the account holder is Sri.Thaha Kaleel, father of the student. It is evident from Ext.A1 that `38 lakhs was withdrawn on 15/9/2016. She stated that they have paid `10 lakhs to M/s EDU World, Mangalore for admission to MBBS Course for their son in Yenepoya Medical College, Mangalore. The said amount was received back. Exts.A4, A4(a), A5 and A5(a) prove the fact that `10 lakhs had been paid to EDU World. But other than the oral testimony of CW1, there is no material to indicate that EDU World had returned the said amount of `10 lakhs, which is the source shown by her for payment of `7.17 lakhs. In the absence of any evidence to prove that she got back `10 lakhs from EDU world, the source for the said amount of `7.17 lakhs is not proved. The Committee however placed reliance on the said source as well, which, according to us, is erroneous and perverse in view of the fact that there is no material to indicate that EDU World had returned `10 lakhs to CW1. Hence the complainant could only prove the source for `38 lakhs. The amount collected in excess is `38,00,000/- - `11,65,000/- = `26,35,000/-. WP(C) Nos.26470 & 28589/19 -:12:- 12. The amounts thus payable/refundable by the college is ## redetermined as under:- |Sl. No.|Particulars|Amount| |---|---|---| |1|Fees including hostel fee|`11,65,000/-| |2|Double the amount collected over and above<br>the fee (`26,35,000 x 2)|`52,70,000/-| |3|Total amount payable in terms of the<br>direction of the Supreme Court|`64,35,000/-| |4|Amount already paid|`23,30,000/-| |5|Balance amount payable|`41,05,000/-| Exhibit P7 order in WP(C) No. 26470/2019 shall stand modified accordingly. 13. WP(C) No. 28589/2019 has been filed by the student seeking for implementing order dated 13/6/2019. Since we have already modified the said order and reduced the amount payable, and have issued directions to pay the amount within four weeks from the date of receipt of a copy of this judgment, no further orders are required in the above writ petition. In the result:- (i) WP(C) No. 26470/2019 is partly allowed as under:- The college shall refund an amount of `41,05,000/- (Rupees Forty one lakhs and five thousand only) to the 1[st] respondent within four weeks from the date of receipt of a copy of this judgment, failing which, further steps shall be taken by the 2[nd] WP(C) Nos.26470 & 28589/19 -:13:- respondent in accordance with law. (ii) WP(C) No. 28589/19 is disposed of in the light of the direction issued in WP(C) No.26470/2019. **Sd/-** Rp **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE** WP(C) Nos.26470 & 28589/19 -:14:- ## **APPENDIX OF WP(C) 26470/2019** **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 COMPLAINT DATED 11.6.2018 FORWARDED TO THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE STATEMENT FILED BEFORE THE 2ND RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE PAYMENT RECEIPT ISSUED BY THE COLLEGE** - **EXHIBIT P6 TRUE COPY OF THE PROOF AFFIDAVIT DATED 12.3.2019 WITH EXHIBITS AND DEPOSITION** - **EXHIBIT P7 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT IN ASC(P)91/18/H0/TVPM/MBBS/KMC DATED 13.6.2019 WITH ERRATUM.** **EXHIBIT P8 TRUE COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.** **EXHIBIT P9** **TRUE COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE DOCUMENT PRODUCED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.** WP(C) Nos.26470 & 28589/19 -:15:- ## **APPENDIX OF WP(C) 28589/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT OF INDIA IN SPECIAL LEAVE PETITION (CIVIL)NO.23225/2018 DATED ON 29.8.2018.** **EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN MA.NO.2354 OF 2018 IN SPECIAL LEAVE PETITION (CIVIL)NO.23225/2018 DATED 4.10.2018.** **EXHIBIT P3 A TRUE AND CORRECT COPY OF THE NOTICE DATED 28.11.2018 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P4 A TRUE AND CORRECT COPY OF THE OBJECTION STATEMENTS FILED BY THE RESPONDENT NO.1 COLLEGE BEFORE THE HON'BLE ASC.** **EXHIBIT P5 A TRUE AND CORRECT COPY OF THE COUNTER DATED 25.12.2018 FILED BY THE FATHER OF THE APPLICANT/PETITIONER BEFORE THE HON'BLE ASC.** **EXHIBIT P6 A TRUE AND CORRECT COPY OF THE PROOF AFFIDAVIT ON 12.3.2019 FILED BY THE MOTHER OF THE PETITIONER (NAFEESATH BEEVI) BEFORE THE HON'BLE ASC.** **EXHIBIT P7 TRUE COPY OF THE ORDER NUMBERED ASC(P)91/18/HO/TVPM/MBBS/KMC ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT DATED ON 13.6.2019.** **EXHIBIT P8 TRUE COPY OF THE CORRECTION LETTER NO.ASC(P)/91/18/HO/TVPM/MBBS/KMC PASSED BY THE 3RD RESPONDENT DATED 21.6.2019.** ## WP(C) Nos.26470 & 28589/19 -:16:- **EXHIBIT P9 A TRUE COPY OF THE ORDER OF HON'BLE SUPREME COURT IN CONTEMPT.PET. (C)NO.896/2019.**