Kerala High Court
The Principal vs The Admission And Fee Regulatory ... on 12 June, 2020
Bench: A.M.Shaffique, P Gopinath
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.16375 OF 2019(V)
PETITIONER:
THE PRINCIPAL
KANNUR MEDICAL COLLEGE, ANJARAKKANDI,
KANNUR, KERALA-670 612
BY ADVS.
SRI.GEORGE POONTHOTTAM (SR.)
SMT.NISHA GEORGE
RESPONDENTS:
1 THE ADMISSION AND FEE REGULATORY 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 SHARON JERUM VARGHESE,
S/O. SANJEEV VARGHESE, MELEKARIPACHERIL, BETHANYA,
MUTHUPALA, NARAKATHANI P.O, PATHANAMTHITTA-689 544
3 ADDL.R3.SANJEEV VARGHESE
AGED 52 YEARS
S/O VARGHESE, MELEKARIPPACHERIL HOUSE, MUTHUPALA,
NARAKATHANY.P.O,PURAMATTOM VILLAGE, MALLAPPALLY
TALUK, PATHANAMTHITTA DISTRICT, PIN-689 584.
ADDL.R3 IMPLEADED AS PER ORDER DATED 17.02.2020 IN IA
1/2019 IN W.P.(C) 16375/19.
R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY
COMMITTEE FOR PROF. COLLEGES
R3 BY ADV. BINU PAUL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-
2020, THE COURT ON 12-06-2020 DELIVERED THE FOLLOWING:
W.P (C) No.16375/2019 -2-
JUDGMENT
Dated this the 12th 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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed), through an order dated 14.11.2016.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 W.P (C) No.16375/2019 -3- 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 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 W.P (C) No.16375/2019 -4- collected from one Sharon Jerum Varghese.
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 (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.
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 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 W.P (C) No.16375/2019 -5- 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 1 st respondent (the Admission and Fee Regulatory Committee) and Sri. Binu Paul, learned counsel appearing for respondent No.2 and for the additional 3rd respondent. The learned 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 Rs.19.65 lakhs and therefore no further liability could be fastened on the college since an amount of Rs.39,30,000 being the double the amount of Rs.19.65 lakhs has already been refunded. He states that the Committee wrongly accepted the case of the complainant that the amounts paid to the account of one Mahad Babu should also be accounted for as a payment to the college. He would state that the screen shot of the whatsaap messages produced by the complainant would not show in any manner that the said Mahad Babu was a representative of the petitioner college. According to him the said document in fact shows that Sri. Mahad Babu was an agent arranging admission in different colleges. The learned Counsel appearing for the ASC would point out that the ASC which was a committee under Act W.P (C) No.16375/2019 -6- 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.
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 & ors - (2016) IX SCC 263.
7. The ASC has, on 12-04-2019 determined the amount payable to student/complainant to be a sum of Rs.55,87,000/- after deducting the amount of Rs.39,30,000/- already paid by the college. We have gone through the order dated 12-04-2019 which is impugned before us and W.P (C) No.16375/2019 -7- 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.
8. The ASC has considered the following material/documents to reach its conclusion regarding the amount payable by the college to the student / complainant.
Document number
Sl. No. Particulars referred to in the
order of the ASC
1 Proof affidavit of Sri. Sanjeev Varghese, father Produced as
of the student / complainant (additional 3rd Ext.P5 in this
respondent). writ petition
Statement of SB account of Smt. Mini Saji
2 A1
Varghese.
9. As already noticed, the ASC passed Ext.P6 order directing the college to refund an amount of Rs.55,87,000/- to the student. This figure was arrived at by accepting the case of the parent of the student that he had paid a total amount of Rs.57.17 lakhs to the college authorities. After deducting a sum of Rs.19,65,000/- which was the fee (including hostel fee for NRI students), the Committee held that the amount collected over and above the fee was Rs.38,00,000/-. However the case of the student / complainant being that the amount paid to the college was Rs.57,17,000/-, we find that the amount collected over and above the fee payable (even if the payment of Rs.57.17 lakhs is proved) would be Rs.37,52,000/-. W.P (C) No.16375/2019 -8-
10. According to the student/parent, an amount of Rs.40,00,000/- was transferred from the account of the mother of the student to the account of the aforesaid Mahad Babu. It is no doubt true that the account statement (Ext.A1) shows that a total amount of Rs.40 lakhs was indeed transferred to the account of Sri. Mahad Babu. We are however unable to find even a shred of evidence to show that Mahad Babu was acting for and on behalf of the college. Exhibit A1 also shows the withdrawal of a sum of Rs.17,50,000/-, in cash, on 30-09-2015. It is the definite case of the father of the student that he had paid Rs.17,17,000/- on 01-10-2016. We have no hesitation to accept the case of Sri. Sanjeev Varghese that the amount withdrawn on 30-09-2016 from the account of his wife was utilized to make the payment on 01-10-2016. The question before us is regarding the amount of Rs.40,00,000/- which was transferred to the account of Mahad Babu. As already noticed there is no evidence to suggest that Mahad Babu was acting on behalf of the college or that he was an agent of the petitioner college. In fact the whatsaap messages between Sri. Sanjeev Varghese and Mahad Babu suggests that Mahad Babu was an agent who used to arrange admission in various colleges. Therefore in the absence of proof in this case regarding the connection of Mahad Babu with the college, it is difficult for us to hold that Mahad Babu was an agent exclusively for the petitioner college and that he had accepted the money transferred to his account on behalf of the petitioner college. However, we must notice from W.P (C) No.16375/2019 -9- the receipt produced as Ext.P4 along with this writ petition that the college had received a sum of Rs.19,65,000/- from the student on 24-09-2016. We have already found that the parents of the student had the necessary funds at their disposal to have paid a sum of Rs.57.17 lakhs to the college. We have also found that the sum of Rs.17.50 lakhs withdrawn on 30-09- 2016 was utilized to pay a sum of Rs.17,17,000/- to the college on 01-10- 2016. In view of the fact that the college has itself issued Ext.P4 receipt for Rs.19.65 lakhs, we find that the total amount collected by the college from the student is Rs.19,65,000/- paid on 24-09-2016 + Rs.17.17 lakhs paid on 01-10-2016. In the absence of evidence regarding the alleged connection of the college with the aforesaid Mahad Babu we are unable to find that the entire amount paid to Mahad Babu was on account of the college.
11. In view of our findings above, the amounts payable/refundable by the college is redetermined as under.
Sl. No. Particulars Amount
1 Fees including hostel fee Rs.19,65,000/-
2 Double the amount collected over and Rs.34,34,000/-
above the fee (Rs.17,17,000 x 2)
3 Total amount payable in terms of the Rs.53,99,000/-
direction of the Supreme Court
4 Amount already paid Rs.39,30,000/-
5 Balance amount payable Rs.14,69,000/-
Exhibit P6 order shall stand modified accordingly. In the result the writ petition is allowed in part. The college shall refund an amount of W.P (C) No.16375/2019 -10- Rs.14,69,000/- 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, failing which further steps in accordance with law shall be taken by the 1 st respondent.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P. JUDGE AMG W.P (C) No.16375/2019 -11- APPENDIX PETITIONER'S/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 OBJECTIONS/STATEMENT GIVEN BY THE PETITIONER BEFORE THE COMMITTEE.
EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 24.09.2016 ISSUED BY THE COLLEGE FOR THE REMITTANCE OF FEE OF RS. 11.65 LAKHS.
EXHIBIT P5 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH THE COPY OF THE BANK STATEMENT AND WHATSAPP CHAT.
EXHIBIT P6 TRUE COPY OF THE ORDER NO.ASC(P) 91/18/HO/TVPM/MBBS/KMC DATED 12.04.2019 PASSED BY THE ADMISSION SUPERVISORY COMMITTEE.