THE PRINCIPAL, KANNUR MEDICAL COLLEGE V. THE ADMISSION SUPERVISORY COMMITTEE

WP(C)/26721/2019

AI Insights

The case involves Kannur Medical College, which admitted students to the MBBS course in 2016-17 contrary to legal provisions, leading to the cancellation of their admissions. The Supreme Court had previously directed the college to refund double the amount collected from the students, which the college failed to comply with fully. The Admission Supervisory Committee (ASC) determined the amount payable to each student, including the complainant, based on evidence and materials presented. The college contested the ASC's findings, leading to this writ petition. The High Court of Kerala, after reviewing the materials and evidence, upheld the ASC's decision and directed the college to refund the specified amount to the complainant.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 744821 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 10-06-2020
• Assessment Year: misc
• Other Referred Cases: M.S Kazi v. Muslim Education Society & Others [(2016) 9 SCC 263]
• Laws Referred To: 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 15 of 2017
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: MARY BENJAMIN; KALEESWARAM RAJ; VARUN VIJAY; A ARUNA; THULASI RAJ; MAITREYI HEGDE
• Assessee Lawyers: GEORGE POONTHOTTAM; NISHA GEORGE
• Keywords: Admission Supervisory Committee; Illegal admission; Medical college; Refund of Fees; Supreme Court Directive
• Section: 4

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 10TH DAY OF JUNE 2020 / 20TH JYAISHTA, 1942 WP(C).No.26721 OF 2019(M) PETITIONER: THE PRINCIPAL, KANNUR MEDICAL COLLEGE ANJARAKKANDI, KANNUR, KERALA - 670 612. BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE RESPONDENTS: 1 THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA T. C. 15/1553-4 PRASANTHI BUILDINGS, M. P. APPAN ROAD,, VASHUTHACAUD, THIRUVANANTHAPURAM - 695 014, REPRESENTED BY THE CHAIRMAN. 2 DR. A. SADANANDAN KRISHNARAAGAM, NEAR TALUK HOSPITAL, PERAVOOR P.O., KANNUR - 670 673. 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 R2 BY ADV. KUM.THULASI K. RAJ R2 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08- 06-2020, THE COURT ON 10-06-2020 DELIVERED THE FOLLOWING: WP(C) No.26721/2019 -:2:- J U D G M E N T Dated this the 10th 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. WP(C) No.26721/2019 -:3:- 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. 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 1st 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 WP(C) No.26721/2019 -:4:- 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 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 this writ petition, 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 Kum. Krishnendu. 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 WP(C) No.26721/2019 -:5:- 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. 5. We have heard Sri.George Poonthottam, learned Senior Counsel and Smt.Nisha George for the petitioner, Smt.Mary Benjamin, learned Standing Counsel for the 1st respondent (the Admission and Fee Regulatory Committee) and WP(C) No.26721/2019 -:6:- Smt.Aruna.A, learned Counsel appearing for the 2nd respondent, the complainant before the 1st respondent Committee. The learned Senior 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 `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 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 WP(C) No.26721/2019 -:7:- 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. 6. We must first consider the question as to whether the 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]. 7. The ASC has, by order dated 31-05-2019 determined the amount payable to student/complainant to be a sum of `44,39,000/- 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 WP(C) No.26721/2019 -:8:- 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. Sl. No. Particulars Document number referred to in the order of the ASC 1 Proof affiavit of CW1, A.Sadanandan, father of the student. P7 2 Income T ax Return of CW1. A1 3 Certificate issued by Peravoor Co-operative Urban Bnak Ltd., evidencing gold loan for `3,50,000/- on 8/9/2016. A2 4 Statement of HDFC Bank evidencing withdrawal of `3,85,000/- on 15/9/2016, withdrawn by Abdul Gafoor A3 5 Statement of State Bank of India showing withdrawal of `1,00.000/- on 22/8/2016 by Saseendran and `2,00.000/- on 7/9/2016 by Vasu A4 6 Statement of Syndicate Bank evidencing drawal of a DD for `11 lakhs favouring the college and withdrawal of `4,10,000/- on 28/9/2016 A5 7 Certificate from Thalassery Doctor's Co- operative society for having closed 3 FD's on 6/9/2016 for `2,62,923/- A6 8 Statement of Sub Treasury evidencing withdrawal of `60,000/- on 7/9/2016, `2,70,000/- on 23/9/2016 and `50,000/- on 30/9/2016 A7 9. The parents of the student contended they had paid a WP(C) No.26721/2019 -:9:- total amount of `39,67,000/- 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 collected was `28,02,000/-. 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. No. Particulars Amount 1 Fee including hostel fee `11,65,000/- 2 T wice the amount collected over and above the fee (`28,02,000 x 2) `56,04,000/- 3 Amount already refunded `23,30,000/- 4 Balance payable (1 + 2 - 3) `44,39,000/- 10. According to the student/parent, an amount of `28.67 lakhs was paid to the college as cash and `11 lakhs by way of demand draft. According to the college, they have received only `10 lakhs towards fee and `1,65,000/- towards hostel fee. In order to prove the source of `39.67 lakhs, the affidavit referred to above had been filed by the father of the student. The Committee accepted the version with reference to Exts.A1 to A7 and the submission of the CW1 that he had received `3,00,000/- WP(C) No.26721/2019 -:10:- from his father-in-law, that CW1 and his wife together had `4,79,077/- with them as cash. The Committee observed that since the parents of the student were financially sound, they are capable of arranging such funds. 11. 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. We don't find any reason to doubt the genuineness of Exts.A2, A5, A6 and A7. With reference to Exts.A3 and A4, the contention of the college is that the amounts mentioned in the said statement had been collected by third parties and rightly so. But CW1 in his evidence has stated that he had asked those persons to collect money for him, since he was busy in his office. There is no reason to disbelieve his version. But, with reference to the claim that `3,00,000/- was collected from father-in-law of Yatheendran, and that CW1 was keeping cash of `2 lakhs, and that `2,79,077/- cash was available with the student's mother cannot be believed. If at all they have withdrawn cash and kept it with them, there has to be a source. No such evidence has been adduced. WP(C) No.26721/2019 -:11:- 12. In the said circumstances, we are of the view that the source of funds available with the student/parents at the relevant time was `31,87,923/- (rounded to `31,87,900/-) which represents the total of the amounts reflected in Exts.A2 to A7. There is no dispute about the fact that `11,65,000/- was received towards tuition fee and hostel fee which means that the balance amount is collected in excess of the fee. Therefore, `20,22,900/- would be the additional amount collected. The amounts 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 the fee (`20,22,900 x 2) `40,45,800/- 3 T otal amount payable in terms of the direction of the Supreme Court `52,10,800/- 4 Amount already paid `23,30,000/- 5 Balance amount payable `28,80,800/- Exhibit P10 order shall stand modified accordingly. In the result, the writ petition is partly allowed as under:- The college shall refund an amount of `28,80,800/- (Rupees T wenty Eight lakh Eighty thousand Eight hundred only) to the 2nd respondent within four weeks from the date of receipt of a copy WP(C) No.26721/2019 -:12:- of this judgment, failing which, further steps shall be taken by the 1st respondent in accordance with law. Sd/- A.M.SHAFFIQUE JUDGE Sd/- GOPINATH P. Rp True copy P.S. To Judge JUDGE WP(C) No.26721/2019 -:13:- APPENDIX OF WP(C) 26721/2019 PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN SLA(C)NO. 23225/2018 DATED 29.08.2018. EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN M.A.NO.2354 OF 2018 IN SLA(C)NO. 23225/2018 DATED 04.10.2018. EXHIBIT P3 TRUE COPY OF THE COMPLIANT DATED 06.06.2018 FORWARDED BY THE 2ND RESPONDENT TO THE CHAIRMAN OF THE ADMISSION SUPERVISORY COMMITTEE. EXHIBIT P4 TRUE COPY OF THE OBJECTION/STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE ADMISSION SUPERVISORY COMMITTEE. EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 27.09.2016 ISSUED BY THE COLLEGE FOR THE REMITTANCE OF FEE OF RS. 11.65 LAKHS. EXHIBIT P6 TRUE COPY OF THE UNDERTAKING OF THE 2ND RESPONDENT AND HIS DAUGHTER DATED 18.01.2018. EXHIBIT P7 TRUE COPY OF THE PROOF AFFIDAVIT DATED 17.04.2019 ALONG WITH THE DOCUMENT PRODUCED. EXHIBIT P8 TRUE COPY OF THE DEPOSITION OF THE 2ND RESPONDENT COMMITTEE. EXHIBIT P9 TRUE COPY OF THE ORDER NO.ASC 100/16/MBBS/KMC DATED 06.09.2016 AND ISSUED ON 09.09.2016 BY THE ADMISSION SUPERVISORY COMMITTEE. WP(C) No.26721/2019 -:14:- EXHIBIT P10 TRUE COPY OF THE ORDER NO.ASC(P)53/18/HO/TVPM/MBBS/KMC DATED 31.05.2019 ISSUED BY THE ADMISSION SUPERVISORY COMMITTEE. 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 RELEVANT PAGES OF ORDER DATED 19.9.2017 IN CRL.M.C.NO.1161/2017 PASSED BY THE COURT OF SESSIONS, THALASSERY "