Karnataka High Court
Dr Shaan T V Antony vs State Of Karnataka on 24 October, 2024
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NC: 2024:KHC:42891-DB
WP No. 9317 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION NO. 9317 OF 2022 (EDN-RES)
BETWEEN:
DR SHAAN T V ANTONY,
D/O T V ANTONY,
AGED ABOUT 35 YEARS,
R/AT TRIKKUKARAN HOUSE
OLLUR POST, THRISSUR,
KERALA - 680 306.
...PETITIONER
(BY SMT. AKKAMAHADEVI HIREMATH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF MEDICAL EDUCATION,
6TH FLOOR, 4TH GATE,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
Location: HIGH COURT OF
M.S BUILDING,
KARNATAKA
BENGALURU - 560 001,
REPRESENTED BY ITS
SECRETARY.
2. THE NATIONAL MEDICAL COMMISSION,
POCKET-14, SECTOR-8,
DWARAKA PHASE 1,
NEW DELHI -110 077.
REPRESENTED BY THE
EXECUTIVE SECRETARY.
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NC: 2024:KHC:42891-DB
WP No. 9317 of 2022
3. THE DIRECTORATE OF
MEDICAL EDUCATION,
REPRESENTED BY ITS
DIRECTOR,
ANAND RAO CIRCLE,
BENGALURU-560 001.
4. KARNATAKA EXAMINATION AUTHORITY,
SAMPIGE ROAD, 18TH CROSS,
MALLESWARAM,
BENGALURU-560 012,
REPRESENTED BY ITS
EXECUTIVE DIRECTOR.
5. SHRIDEVI INSTITUTE OF MEDICAL
SCIENCES AND RESEARCH HOSPITAL,
NH 4, SIRA ROAD,
TUMAKURU - 572 106,
REPRESENTED BY ITS DEAN.
...RESPONDENTS
(BY SRI.VIKAS ROJIPURA, AGA FOR R1 AND R3,
SRI. N. KHETTY, ADVOCATE FOR R2,
SRI. N.K. RAMESH, ADVOCATE FOR R4,
R5 IS SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A
WRIT OF CEERTIORARI, QUASHING THE IMPUGNED
ENDORSEMENT DATED 04.05.2022 IN NO. ED / KEA / LE SHA-
3 / CR-16 /22-23, ISSUED BY THE 4TH RESPONDENT
PRODUCED AS ANNEXURE - K AND ETC.,
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN
and
HON'BLE MR JUSTICE UMESH M ADIGA
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NC: 2024:KHC:42891-DB
WP No. 9317 of 2022
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE ANU SIVARAMAN) This writ petition is filed seeking for the following reliefs:
a) A Writ of Certiorari, quashing the impugned Endorsement dated 04-05-2022 in No. ED / KEA /Le Sha-3 / CR-16 /22-23, issued by the 4th respondent produced as Annexure - K. B. A Writ of mandamus, directing the 4th respondent to refund the amount of Rs.67,15,500/- ( Rupees Sixty Seven Lakhs Fifteen Thousand Five Hundred Only) paid towards course fee.
C. To hold and declare that the petitioner is entitled to the seat in MS OBG in any of the other available and vacant MS OBG seats in other colleges at the time of counselling, when she was given the non existent seat in the Shridevi Medical College, and D. A direction to the 4th and the 5th respondents to pay Rs. 67,15, 500/- ( Rupees Sixty Seven Lakhs Fifteen Thousand Five Hundred Only) as damages to the petitioner. E. To direct that henceforth the entire process of the sage of counselling in the MOP UP round and stray round be converted to Online Counselling, and F. To direct that henceforth after conclusion of all rounds including the MOP UP round and stray round online, a window of a certain number of days be provided thereafter, say one week or two weeks, for the purpose of resolving any incidental issues or wrongful actions of the authorities. colleges are candidates, so as to avoid a fait accompli the name of the last date of admissions, and.
G. To direct an enquiry to be held into the aforementioned illegalities by the KEA and fix the responsibility on the concerned officials for initiating further action against them in accordance with law and to direct the recovery of the damages amount from the officials personally. -4-
NC: 2024:KHC:42891-DB WP No. 9317 of 2022 H. Grant such other relief/s that this Hon'ble Court may deem fit in the facts and circumstances of the matter.
2. Heard learned counsel for the petitioner, learned Government Advocate for respondent Nos.1 and 3, learned counsel appearing for respondent No.2 - The National Medical Commission, and learned counsel for respondent No.4.
3. Though notice has been served on the 5th respondent, there is no appearance for the said respondent.
4. It is submitted by learned counsel for the petitioner that the petitioner was an applicant for PG NEET for the year 2021-22 in NRI quota and that the Mop-Up round of counseling was conducted on 28th April 2022. It is contended that the seat matrix was not made available by the KEA, the details of the seats and the status of permission and recognition were not made available to the candidates at the time of the Mop-Up round of counseling.
5. It is submitted that at the time of Mop-Up round of counseling, the MS seat in OBG was offered in the 5th respondent - Institution and that the petitioner had accepted the seat on the bonafide impression that it could be a -5- NC: 2024:KHC:42891-DB WP No. 9317 of 2022 recognized seat and she had also paid the required fee of Rs.67,15,500/- through Demand Drafts as produced at Annexure - D1. However, it is submitted that immediately on exiting the counseling hall the petitioner made enquiries and came to know that MS-OBG course was not recognized and it was not noted in the website of the college as a course offered by the college. It is submitted that on being made aware of the fact that there is no recognition for the course in question, the petitioner submitted Annexure - G, letter, on 30.04.2022 seeking cancellation of the admission and refund of her fees. It is submitted that even thereafter, though requests were made before the KEA as well as the Director seeking to refund of the fees and return of her original documents, the same was not considered by either the Directorate or the KEA. The learned counsel submits that the original documents of the petitioner came to be returned pursuant to interim orders passed by this Court but the fees paid by her have not been refunded.
6. A statement of objections has been placed on record by fourth respondent - Karnataka Examination Authority. It is submitted that the petitioner had participated in the off-line Mop-Up round of counseling and has selected a seat -6- NC: 2024:KHC:42891-DB WP No. 9317 of 2022 in MS-OBG in Shridevi Institute of Medical Sciences and Research Hospital and had paid the prescribed fees of Rs.67,15,500/- through Demand Drafts. However, as on 30.04.2022, she did not report to the college and she gave a representation to the fourth respondent - Karnataka Examination Authority to cancel her admission and for refund of her fees. Annexure - K endorsement dated 04.05.2022 was issued on the said representation, pointing out that she is not entitled for refund of the fees and she is also liable to pay a penalty of Rs.15,00,000/-. It is further submitted that the specific aspects are been clear in Cl.12.4 and 13.5 of the information Brochure for admission for the year 2021-22 and that the responsibility of the KEA is limited to conduct of Centralised Counseling, which includes Registration, document verification, counseling, allotment of seat and issue of Admission Order.
7. It is further contended that as regards the status of the seat, whether it is a permitted or recognised seat and the consequences of selecting a permitted seat, it is to be clarified by respondent Nos.1, 2, 3 and 5 and that the 4th respondent only publishes the seat matrix as made available by respondent -7- NC: 2024:KHC:42891-DB WP No. 9317 of 2022 Nos.1 and 3. It is further contended that in the Mop-Up round, the seat matrix as furnished by respondent Nos.1 and 3 is displayed in the counseling hall and the students who participated have to choose the seat and the college at their own will and volition. It is stated that once the seat is taken and the fee is paid, the cancellation of such admission can be only on forfeiture of the entire fee paid and on payment of penalty of Rs.15,00,000/-. In support of the said contention, the learned counsel places reliance on Sub Rule (3) of Rule 15 of Karnataka Conduct of Entrance Test for Selection and admission to Post Graduate Medical and Dental degree and Diploma Courses (Amendment) Rules, 2019. It is therefore contended that the prayer sought for cannot be allowed.
8. The petitioner has preferred re-joinder to the written submission of the fourth respondent as well as to the statement of objections. It is specifically contended by the petitioner that the seat matrix was not published in the website prior to the Mop-Up round of counseling. It is contended that the Mop-Up round of counseling was conducted off-line and the status of the seats, i.e., specifically whether the seat offered to the petitioner was a recognized seat or even a permitted seat -8- NC: 2024:KHC:42891-DB WP No. 9317 of 2022 was not made available to the candidates at the time of the Mop-Up counseling or at any point of time prior there to on the website. It is therefore contended that it is on the bonafide impression that the seat offered was a recognized NRI seat and that the petitioner had made the payment of the fees and immediately on coming to know that it is not so, she had submitted representation seeking the cancellation of the admission and refund of the fees.
9. The learned counsel appearing for respondent No.2
- The National Medical Commission submits that from a perusal of the material produced along with the writ petition at Annexure - F as also the pleadings and the materials produced along with the rejoinder filed by the petitioner, it is clear that the status of the MS-OBG NRI seat in the fifth respondent - Institution, which was offered to the petitioner in the Mop-Up round of counseling is not available on the website of the Karnataka Examination Authority or even that of the institution. It is submitted that the status of the seat was only a permitted seat and recognition had not yet been granted in the relevant academic year. It is submitted that in case the details of the status of the seat was made available to the aspirants for the -9- NC: 2024:KHC:42891-DB WP No. 9317 of 2022 seats then the conditions in the prospectus as well as the provisions of Rule 15(3) of the amendment Rules could have been made applicable. However, in the absence of the status of the seats being made known to the candidates, it is contended that it may not be a proper exercise to forfeit the entire fees paid by the candidates as also to require payment of penalty. Learned counsel submits that Annexure-P1 regulation by the MCI specifically warrants such disclosure.
10. The learned Government Advocate would contend that the seat matrix had been made available at the time of the Mop-Up counseling at the respective centers and that the petitioner had accepted the seat and made the payment of fees and was therefore liable to forfeit the amount as provided in the prospectus.
11. Having considered the contention advanced on all sides, we see that it is the specific case of the petitioner that the status of the seat in question, which she had accepted in the Mop-Up round of counseling was not made available to the candidates in the website of the KEA or in any manner by which the petitioner would have known that the seat in question was
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NC: 2024:KHC:42891-DB WP No. 9317 of 2022 only the permitted seat and not a recognized seat. This aspect of the matter has not been denied by either the KEA or the NMC or the Government in these proceedings.
12. The provisions of 15(3) of the Karnataka Conduct of Entrance Test for Selection and admission to Post Graduate Medical and Dental degree and Diploma Courses (Amendment) Rules, 2019 reads as follows:
"Any cancellation or surrender of seats after the mop up round shall be made in person only to the Director, Directorate of Medical Education, Karnataka with a penalty of Rs.15,00,000/- (Rupees fifteen lakhs only) in case of Medical Clinical Degree or Diploma Courses and Rs.5,00,000/- (Rupees five lakhs only) in case of Dental Degree or Diploma Courses and forfeiture of fees paid before the last date of admission as notified. Further, they will be ineligible for further rounds of admission including names list admission".
13. Having considering the contentions advanced and the submissions made across by the Bar, we notice that the Post Graduate permission letter uploaded in the Website of the fifth respondent - Institution as evident from Annexure - G3 does not include the seat, which is offered to the petitioner i.e. MS OBG. Further, it is clear from the submissions made by learned counsel appearing for the 2nd respondent that the status of the seat was not made available in the KEA website
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NC: 2024:KHC:42891-DB WP No. 9317 of 2022 either. This aspect is specifically pleaded by the petitioner without any specific denial by any of the respondents. It is clear that Annexure - P1 regulation of the Medical Council of India specifically warrants such disclosures. In the above factual situation and in view of the fact that the seat, which was sought to be opted by the petitioner in the Mop-Up round of counseling was an NRI seat, we are of the opinion that the contention raised that the attempt of the petitioner was to block the seat cannot be accepted. In view of the fact that the status of the seat was not made known to the petitioner at the time of participation in the Mop-Up round of counseling, we are of the opinion that the contention that she has to forfeit the entire fees paid by her and pay further amount of Rs.15,00,000/- as penalty cannot be accepted. In the facts and circumstances of the case, we are of the opinion that the petitioner is entitled to succeed in the writ petition.
14. In the above view of the matter, we pass the following:
(i) The impugned Endorsement dated 04.05.2022 in No. ED/KEA/Le sha-3/CR-16/22-23, issued
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NC: 2024:KHC:42891-DB WP No. 9317 of 2022 by the 4th respondent produced at Annexure - K is set aside.
(ii) The 4th respondent is directed to refund the amount of Rs.67,15,500/- paid towards the course fee to the petitioner within a period of three weeks from the date of receipt of a copy of this judgment.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(UMESH M ADIGA) JUDGE AG List No.: 1 Sl No.: 32