Karnataka High Court
Dr. Himanshu Dwivedi vs Kempegowda Institute Of Medical ... on 9 March, 2018
Equivalent citations: 2018 (4) AKR 185, (2018) 4 KANT LJ 852
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH 2018
PRESENT
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
W.P.NO. 1636/2018 (EDN)
BETWEEN:
1. Dr. Himanshu Dwivedi
S/o. Om Prakash Dwivedi
Aged about 28 years,
Presently residing at Room No.220,
PG Resident Quarters,
KIMS Hospital & Research Centre,
K.R.Road,V.V. Puram,
Bengaluru-560 004
...PETITIONER
(BY SRI D N NANJUNDA REDDY, SENIOR ADVOCATE
FOR RUBEN JACOB, ADVOCATE)
AND:
1. Kempegowda Institute of Medical Sciences (KIMS)
K.R.Road, V.V.Puram,
Bengaluru 560 004
Represented by its Dean & Principal.
2. Medical Council of India
Through its Secretary,
Pocket 14, Sector 9,
Dwaraka, New Delhi 110 077
3. Rajiv Gandhi University of Health Sciences
2
4thT Block, Jayanagar,
Bengaluru 560 041
Represented by its Registrar
...RESPONDENTS
(BY SRI A V NISHANTH, ADVOCATE FOR R1)
(BY SRI N KETTY, ADVOCATE FOR R2)
(BY SRI N K RAMESH, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA TO QUASH THE
COMMUNICATION DATED 08.11.2017 ISSUED BY THE R-2 VIDE
ANNEXURE-Y; QUASH THE COMMUNICATION DATED 17.03.2017
ISSUED BY THE R-3 VIDE ANNEUXRE-U; QUASH THE OFFICE
MEMO DATED 27.07.2017 ISSUED BY R-1 VIDE ANNEXURE-V
AND DIRECT THE R-2 AND 3 TO APPROVE THE ADMISSION OF
THE PETITONER IN THE R-1 COLLEGE FOR THE ACADEMIC YEAR
2016-17 IN RESPECT OF THE POST GRADUATE MEDICAL SEAT
OF MS ORTHOPAEDICS.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
22.02.2018 AND COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY, B.M. SHYAM PRASAD, J., MADE THE FOLLOWING:
ORDER
1. The petitioner whose admission to the Post graduation Course in MS Orthopedics for the academic year 2016-2017 with the first respondent is approved neither by the second respondent (Medical Council of India) nor the third respondent (RAGHUS), has filed this petition challenging the communication dated 08.11.2017 in No.MCI-23(1)(MC)/ 2016/M-P/152975 (Annexure-Y) issued by the second respondent, the communication in No.AC2-ADM/PG- 3 Med/2016-17/M005 dated 17.03.2017 (Annexure-U) issued by the third respondent and the consequential Office Memorandum in No.KIMS/838(A)2017-18 dated 27.07.2017(Annexure-V) issued by the first respondent discharging the petitioner.
1(a). The first and the second respondents have filed their objections statement, and the petitioner has filed rejoinder in response to the objections statement filed by the first respondent. The third respondent has not filed objections statement, but it is stated at the Bar that the third respondent adopts the legal arguments submitted on behalf of the second respondent supporting its decision not to approve the petitioner's admission with the first respondent. The pleadings by the petitioner and the first respondent, who has given admission to the petitioner to Post graduation in MS-Orthopaedics, a broad specialty subject, are diametrically different as regards the following and the same are referred to here so that the content of the dispute is emphasized:
a) The circumstances of the petitioner's admission on 31.05.2016 to Post graduation Course in MS 4 Orthopaedics and the amounts paid by the petitioner to secure such admission,
b) The petitioner's admission being under NRI category or Management quota, [However, both the petitioner and the first respondent are in unison in stating that the admission to the petitioner was given without a "Rank Card" and that the petitioner did not qualify in the entrance examination conducted by COMED-K.]
c) Intimation to the petitioner by the first respondent of the different communications/correspondences by the second and third respondent as regards approval of the petitioner's admission.
2. On the circumstances of the petitioner's admission and different amounts remitted/paid by the petitioner for such admission.
2(i) The petitioner has asserted that when he approached the Vokkaligara Sangha which manages the first respondent Institution for admission to Post graduation Course in MS Orthopaedics, he was asked to meet one of the Directors of the Sangha and that the petitioner, pursuant to the different assurances held out by one of the directors of the Sangha, made over a total sum of Rs.1,82,00,000/- to that Director to secure admission.
2(ii) The petitioner has also asserted that a sum of Rs.50,00,000/- was deposited by RTGS on various dates and 5 the remaining amount was made over to the concerned Director by cash. The petitioner continues to state that these amounts that were deposited by RTGs and paid by cash were inclusive of the first year fee in a sum of Rs.11,30,430/- paid to the first respondent on behalf of the petitioner. The petitioner further contends that he has paid fee charged for NRI Quota seat and such fee is higher than the fee charged for COMED-K seats and Management Quota seats. .
2 (iii) The first respondent, denying complete knowledge of the alleged payments made by the petitioner to any of the Directors of the Sangha, only admits the remittance of a total sum of Rs.11,30,430/- as per the different receipts issued by it. The first respondent has asserted that the petitioner was given admission to M.S. Orthopaedics as against the petitioner's letter dated 31.05.2016 (Annexure-R11) which states that the petitioner was requesting for admission in M.S. Orthopaedics, that the petitioner was not qualified in COMED-K examination and that the petitioner was seeking admission at his own risk (expressed as "with my full responsibility"). The first 6 respondent relying upon a Note, which according to it is made by the Principal of the Institution on the same letter on 31.05.2016, asserts that the petitioner was admitted on the permission given by the President Rajya Vokkaligara Sangha and that the petitioner was admitted at his own risk. The first respondent has also relied upon the undertaking executed by the petitioner on the stamp paper which bears not only the signature of the petitioner, but also his left thumb impression.
2(iv). The petitioner in his Rejoinder in paragraphs-9 and 10 has admitted the letter dated 31.05.2016 but qualifying that he wrote such letter as a matter of abundant caution and because he was assured of the admission and that the petitioner, who was working as a junior assistant anticipating admission, could not have refused when the Principal asked for such letter. Insofar as the undertaking on stamp paper, the petitioner has stated that he procured the stamp paper on the instructions of the "college authorities" and that he signed such undertaking and affixed 7 his left thumb mark after he wrote his name, address and mobile number.
2(v). The learned Senior Counsel Sri Nanjunda Reddy appearing for the petitioner drew the attention of this Court to such pleadings, but submitted that the petitioner would pivot his case only on the assertion that the petitioner was admitted to the Post graduation Course by the first respondent on the basis of the petitioner's request. 2(vi) The learned Counsel for the first respondent, Sri A V Nishanth submitted that neither Rajya Vokkaligara Sangaha nor the Director being made a party to the present writ petition, the petitioner's assertions in this regard cannot be countenanced and the learned Counsel also submitted that if the petitioner were to furnish details, the first respondent would forward the same to the Sangha for necessary action in that regard.
3. The petitioner's admission under the NRI Category or Management Quota:
3(i) The petitioner has asserted that he was admitted under NRI quota and therefore he paid amounts as stated, 8 and in support of the contention that he was admitted under NRI quota, the petitioner has also placed reliance upon the letter dated 08.08.2017, which is produced as Annexure-W to the petition. The petitioner has contended that he was shown this letter as per Annexure-W (addressed by the first respondent to the second respondent) and the same was also sent via mobile app to his Uncle by one of the Director's of the Sangha, when the petitioner/his elders repeatedly pursued with the first respondent for securing the approval for the admission. The petitioner has asserted that in this letter dated 08.08.2017, which allegedly was shown to him and sent via mobile app to his Uncle, the first respondent has placed on record that the petitioner was given admission after a certain Dr. Vipin Carat withdrew his request for admission at the last minute and the petitioner was allotted such seat and that the first respondent was seeking approval of the petitioner's admission under NRI category in place of Dr. Vipin Carat. However, the petitioner has further asserted that he later ascertained that the first respondent while forwarding this letter to the second respondent had substituted the last paragraph to indicate that the petitioner 9 was given admission by the first respondent at the petitioner's risk without indicating the category. The petitioner has produced a copy of the said letter with the alleged substitution as Annexure- X. 3(ii) The first respondent has controverted these assertions and has stated that because the petitioner has culpably contrived this letter a private complaint is registered with the jurisdictional Magistrate in PCR No.1268/2018 and that this private complaint is pending consideration. The learned Senior Counsel for the petitioner Sri Nanjunda Reddy has submitted on instructions that the petitioner will confine his case to stating that the petitioner's admission with the first respondent is under "Management Quota".
4. On intimation of the communications inter se Respondents on petitioner's admission:
4(i) The petitioner has asserted that after his admission on 31.05.2016 and the payment of different amounts as referred to above, including the amounts towards hostel fee, he was attending the classes regularly when the Head of the 10 Department of Orthopaedics on 04.04.2017 informed him that there were difficulties with his admission and instructed the petitioner orally not to attend the classes. The petitioner further asserts that though he was shown a copy of the letter dated 04.04.2017 issued by the third respondent, he was permitted to attend the classes till 08.12.2017 when he was informed that the second respondent had not approved his admission and on this day he was also asked not to attend the classes. The petitioner has also asserted that only after his visits to Delhi to call upon the officials of the second respondent to ascertain the status of his admission, he came to know about the different correspondences by the second and third respondents who even as early as 04.04.2017 had informed that the petitioner's admission was not approved. The petitioner has listed the different communications in paragraph 11 of the petition and it includes the impugned communications.
4(ii) The first respondent in response to these assertions has stated in its objections statement that the petitioner, who was given admission at his own risk, was requested to 11 furnish the COMED-K 'Rank Card' to secure necessary approval for the admission by the second and third respondents and that all the communication/ correspondences were within the knowledge of the petitioner. The first respondent therefore asserts that the petitioner cannot find his cause on the assertion that he was permitted to continue classes till the month of December 2017 without being informed about the decision of the said authorities not to approve his admission. 4(iii) It is seen that the communication dated 17.03.2017 is marked to the petitioner way back in the month of March 2017 by the third respondent informing the petitioner that his admission was not approved and also the reason for such non-approval. This communication states that the petitioner's admission was not being approved because 'Rank Card' was not submitted. The petitioner has not chosen to explain the receipt of this communication addressed to him or other circumstances which show that the petitioner was in the know of the fact that the second 12 and third respondents had not accorded approval for his admission.
6. The learned Senior Counsel for the petitioner, Sri Nanjunda Reddy, eschewing all submissions on these facts, which undeniably underline a very deprecatory quagmire in which a student is either wittingly or unwittingly drawn into, submitted that the second and third respondents could not have refused to approve the petitioner's admission with the first respondent for Post Graduation in M.S. Orthopaedics for the academic year 2016-17 under the Management Quota on the ground that the petitioner had not submitted "Rank Card" as the petitioner in law need not have secured any qualifying marks in any entrance examination to secure admission to Post Graduation under the Management Quota during the year 2016-17. The learned Senior Counsel in support of this contention submitted that after the Hon'ble Supreme Court struck down Regulation 9 of the Postgraduate Medical Education (Amendment) Regulations, 2010 (Para III) by its decision reported in the Christian 13 Medical College, Vellore vs. Union of India1, there was no Regulation in operation prescribing inter-se academic merit or competitive test for Management Quota until the later decision in Christian Medical College, Vellore Vs. Union of India2,and relied upon the decisions of the Hon'ble Supreme Court in State of Tamil Nadu Vs. K Shyam Sundar3.
7. The learned Counsel for the petitioner elaborated contending that the earlier Regulation 9 of the Postgraduate Medical Education (Amendment) Regulations, 2009 (Part-II)
- ('Regulation 9 of the Regulations 2009', for short) was permanently effaced with its substitution by Regulation 9 of the Postgraduate Medical Education (Amendment) Regulations, 2010 (Para III) ('Regulation 9 of Regulation 2010', for short), and later the Hon'ble Supreme Court in Christian Medical College, Vellore Vs. Union of India4 also declared Regulation 9 of 'Regulations 2010 violated Part-III of the Constitution; and therefore, both the Regulation 9 1 (2014) 2 SCC 305 decided on 18.07.2013 2 (2016) 2 SCC 342 decided on 11.4.2016 3 (2011) 8 SCC 737, (1985) 1 SCC 641 & AIR 1963 SC 928 4 (2014) 2 SCC 305 decided on 18.07.2013 14 of Regulations 2009 and Regulation 9 of the Regulations 2010 ceased to be in operation, and as such, there was vacuum until 11.04.2016 when the Hon'ble Supreme Court in its second decision in Christian Medical College Vs. Union of India5 recalled its decision in the first case restoring Regulation 9 of the Regulations 2010.
8. The Learned Senior Counsel also submitted that though with the second decision in Christian Medical College, Vellore Vs. Union of India, Regulation 9 of the Regulations 2010 was revived, no NEET examinations were held for the academic year 2016-2017 as the admission process had already begun, and therefore the admissions were made in terms of the Consensual Agreement concluded with the State Government and Section 4A of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of fee) (Amendment) Act, 2015 (for short, 'KPEI Act') and that neither Consensual Agreement nor section 4A of the KPEI Act provide for any entrance examination for admissions under the Management Quota; and as such the Respondents could not have refused to 5 (2016) 2 SCC 342 decided on 11.4.2016 15 approve the petitioner's admission. He also submitted that the decision of the Hon'ble Supreme Court in Ashish Ranjan and others vs. Union of India and others6 only approved the amendment to the Schedule of the MCI Post Graduation Regulations, 2000, and that this decision cannot have any bearing on the question that is canvassed by him in this case, and he lastly contended that in view of the fact that the petitioner had prosecuted his studies for about one and half years, the first respondent should be directed to forego one seat in the NRI category for the year 2017-18 with directions to the second and third respondents to approve the petitioner's admission under NRI quota.
9. The learned Counsel, Sri N.Khetty, for the second respondent, with learned Counsel, Sri N.K.Ramesh, for the third respondent, placing reliance on the decision of the Hon'ble Supreme Court in P.A. Inamdar and others vs. State of Maharashtra and others7 and Sudhir N. and others vs. State of Kerala and others8, contended that the admissions to all the medical colleges ought to satisfy 6 (2016) 11 SCC 225 7 (2005) 6 SCC 537 8 (2015) 6 SCC 685 16 the triple tests of being fair, transparent and non- exploitative; that approval of the petitioner's admission with the first respondent without "Rank Card" would be in complete disregard of these tests and that the Hon'ble Supreme Court even as of 12.01.2015 in Sudhir N. and others vs. State of Kerala and others, has declared that all admissions, should be in accordance with the earlier Regulation 9 of Regulations 2009 which prescribes academic merit determined through entrance test. Further, the learned Counsel placing reliance upon the directions contained in Paragraph 161 of the decision of the Hon'ble Supreme Court in the Islamic Academy of Education and another vs. State of Karnataka and others9 contended that there should be imposition of penalty against the first respondent.
10. The Hon'ble Supreme Court has regularly reiterated in its decisions, including its decisions in P.A. Inamdar Vs. State of Maharashtra and others and Islamic Academy of Education and another vs. State of Karnataka and others, that all admission to professional Undergraduate and 9 (2003) 6 SCC 697 17 Postgraduate Courses should be fair, transparent and non- exploitative, and every Act, Rule and Regulation is tested against these three touchstones to ensure that all admissions are based on inter-se academic merits. The Hon'ble Supreme Court in these, decisions has also declared that selection of candidates for admission on inter-se merits in a fair, transparent and non-exploitative manner is only through entrance tests. It is in this background that the learned Senior Counsel's argument that the petitioner for admission under Management Quota for the academic year 2016-17 need not have participated, and been successful in entrance test will have to be examined, and this Court cannot allow any departure from the requirement of inter-se academic merit in admission lest the tests of fairness, transparency or lack of exploitation is breached. If this Court were to hold that the petitioner could have been admitted without "Rank Card" i.e., without the petitioner securing requisite minimum marks in an entrance test/examination, this Court will be permitting a breach of the inviolable requirements reiterated often by the Hon'ble Supreme Court. 18
11. The Hon'ble Supreme Court in its decision in Sudhir N and Ors. Vs. State of Kerala rendered on 12th January 2015, while examining the vires of the provisions of the Kerala Medical Officers' Admission to Post graduate Medical Education Courses under the Service Quota Act, 2008 (Kerala Act 29 of 2008), which provided for admission to in- service candidates only on the basis of inter se seniority, has, while referring to and extracting, Regulation 9 of Regulations 2009, held as follows in para 14 and 15:
"14. Regulation 9 of the Regulations framed under the MCI Act, inter alia, provides that admission to postgraduate medical courses shall be made strictly on the basis of inter se academic merit of the candidates. The Regulation further stipulates the methodology for determining the academic merit of the candidate. It reads:
"9. "Selection of Postgraduate Students- (1)(a) Students for postgraduate medical courses shall be selected strictly on the basis of their inter-se academic merit.
(b) 50% of the seats in postgraduate diploma courses shall be reserved for Medical Officers in the government service, who have served for at least three years in remote and difficult areas.
After acquiring the PG Diploma, the Medical Officers shall serve for two more years in remote and/or difficult areas.
(2) For determining the "academic merit", the University/Institution may adopt the following methodologies:
(a) On the basis of merit as determined by a 'competitive test' conducted by the State Government or by the competent authority 19 appointed by the State Government or by the university/group of universities in the same State;
or
(b) On the basis of merit as determined by a centralised competitive test held at the national level; or
(c) On the basis of the individual cumulative performance at the first, second and third MBBS examinations provided admissions are University wise; or
(d) Combination of (a) and (c):
Provided that wherever 'entrance test' for postgraduates admission is held by a State Government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate medical course shall be 50% for general category candidates and 40% for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes:
Provided further that in non-governmental institutions fifty per cent of the total seats shall be filled by the competent authority notified by the State Government and the remaining fifty per cent by the management(s) of the institution on the basis of inter se academic merit.
Further provided that in determining the merit and the entrance test for postgraduate admission weightage in the marks may be given as an incentive @ 10% of the marks obtained for each year in service in remote or difficult areas up to the maximum of 30% of the marks obtained.' The above leaves no manner of doubt that admissions to postgraduate medical courses have to be made only on the basis of academic merit of the candidates. It is clear from sub-regulation (2) (supra) that for determining the "academic merit" the university/institution can adopt any of the methodologies stipulated therein. In terms of proviso (1) to Regulation 9, general category candidates must secure 50% marks while those belonging to SC/ST and other backwards classes are required to secure at least 40% marks in the entrance test in order to be 20 eligible for admission. In terms of the third proviso to Rule 9 (supra) weightage for service rendered in remote and difficult areas is made permissible @ 10% of the marks obtained for each year in service in remote or difficult areas up to a maximum 30% of the marks.
15. Regulation 9 is, in our opinion, a complete code by itself inasmuch as it prescribes the basis for determining the eligibility of the candidates including the method to be adopted for determining the inter se merit which remains the only basis for such admissions. To the performance in the entrance test can be added weightage on account of rural service rendered by the candidates in the manner and to the extent indicated in the third proviso to Regulation 9. Suffice it to say that but for the impugned legislation making an attempt to change the basis on which admissions can be made, such admissions must, in all categories, be made only on the basis of merit as determined in terms of the provision extracted above.
That method, however, is given a go-by by the impugned legislation when it provides that in-service candidates seeking admission in the quota reserved for in-service doctors shall be granted such admission not on the basis of one of the methodologies sanctioned by Rule 9(2) of the Rules but on the basis of inter se seniority of such candidates. The question is whether the State was competent to enact such a law. Our answer to that question is in the negative. The reasons are not far to seek."
12. Thus, the Hon'ble Supreme Court has also concluded that Regulation 9 Regulations 2009 remained as the only effective and permissible basis for granting admission and that admission ought to be made only on the basis of inter- se merit of the candidate. In the light of this pronouncement on 12th January 2015, the learned Senior Counsel's contention that with effect from 18.07.2013, when the Regulation 9 of Regulations 2010 was struck down 21 in the first of the Christian Medical College, Vellore decision, and as a consequence of such striking down, even Regulation 9 of Regulations 2009 was not available and therefore the petitioner need not have taken entrance examination cannot be accepted. Further, the decisions of the Hon'ble Supreme Court relied upon by the learned Senior Counsel cannot be applied as the same would result in stultifying adherence to strict inviolable requirements emphasized by the Hon'ble Supreme Court for granting admission to professional Courses.
13. This Court in this context also has to take note of the fact that the Hon'ble Supreme Court in the case of Ashish Ranjan approved the amendment to the 'time schedule' for completion of admission process for Postgraduate Courses for the academic year 2016-17, and this 'time schedule' proposed by the Medical Council of India and approved by the Hon'ble Supreme Court, does not contemplate any process other than conduct of entrance examination, declaration of result of the qualifying exam/entrance test, first and second rounds of counseling, commencement of 22 academic sessions and the last date for admissions. Therefore, from this decision of the Hon'ble Supreme Court it cannot be contrived that, especially for the reasons discussed in the earlier paragraphs, that the inter-se academic merit determined through entrance test that is fair, transparent and non-exploitative will not be applicable. On the other hand, it could be realistically held that this decision of the Hon'ble Supreme Court would be a reiteration of the pre-requisite of inter-se academic merit determined through entrance test and 'Rank Card' for granting admissions to Postgraduation.
14. The other argument canvassed by the learned Senior Counsel for the petitioner that the provisions of Karnataka Professional Educational Institutions Act (Regulation of Admission and Determination of fee) Act, 2006, and the amendment there to in 2015, (for short, "KPEI Act') and Consensual Agreement do not provide for entrance examination for admissions under the Management Quota is also unsustainable for the reason that the provisions of Section 4A of KPEI Act will have to be read in conjunction 23 with other amendments brought in to the KPEI Act while incorporating Sections 4A and 4B. The Amendment Act, 2015 while incorporating the provisions of Section 4A and 4B, also incorporated different expressions viz., "Admission" and "Institutional Seats", and substituted Section 4.
"Admission" is defined to mean all admissions made to professional educational courses through common entrance test based on merit and "Institutional Seats" is defined to include all seats other than Government seats filled by Private Unaided Professional Education Institutions through common entrance test conducted by an association of non- minority or minority Private Unaided Professional Educational Institutions. The substituted Section 4 also stipulates that all admissions shall be made through common entrance test. Section 4 as substituted by Amendment Act, 2015 reads as follows:
"4. Method of Admission in unaided professional educational institutions:- Association of all unaided professional educational institutions whether minority or non-minority imparting professional education in any one discipline shall make admission through Common Entrance Test:
Provided that any unaided professional educational institution or deemed university institutions, which would like to make admission for seats other than Government seats through Common Entrance Test Committee, may also exercise their option to join and to make admission 24 through Common Entrance Test Committee in the order of merit and through counseling."
15. The submission of the learned Senior Counsel for the petitioner with reference to Section 4A(1)(B) that while these provisions stipulate common entrance test conducted for admission to 33% of the seats to be filled as Government seats and 42% of the seats to be filled by the Institutions, do not mention any common entrance test for admission to 25% of the seats to be filled by the Institutions from amongst non-resident of India/Management Quota and therefore it does not prescribe determination of inter-se academic merit through entrance test for Management Quota cannot be accepted in view of overwhelming intent of the enactment in prescribing inter-se academic merit determined through common entrance test.
16. Lastly, on the question of imposition of penalty in terms of the decision of the Hon'ble Supreme Court in the case of Islamic Academy of Education and another Vs. State 25 of Karnataka & Ors., the definite declaration by the Hon'ble Supreme Court is that no Institution shall charge any fee beyond the amount fixed and that no employee or persons associated with the management shall take any amount in cash from the students, and the Hon'ble Supreme Court has also said that the statutory authority may consider the desirability of framing appropriate Regulations providing for imposition of penalty of ten to fifteen times of the amount collected over and above the prescribed amount, and in suitable cases, to even withdraw recognition/affiliation. After this decision and the decision in P.A. Inamdar & Ors., Vs. State of Maharastra, the KPEI Act is brought into force and Section 7(4) of the Act provides that every complaint about collection of capitation fee or excess fee shall be inquired into by the Fee Regulatory Committee which shall, after obtaining the evidence and explanation from the Management concerned, shall forward appropriate recommendations to the concerned University or the State Government for necessary action as provided for. This Section provides that the State Government may direct the University to levy fine upto rupees ten lakhs on the 26 Management of the concerned Educational Institution and that it shall be lawful for the concerned University to levy such fine; and this is in addition to the power to the concerned University to withdraw recognition or affiliation to such Institution under intimation to the State Government.
17. In the instant case there are specific allegations about excess amounts paid by the petitioner to secure admission to Postgraduate Course with the first respondent, and nothing is placed on record to indicate that recourse is had to the aforementioned process under the KPEI Act. The provisions of Section 7(4) of the KPEI Act state that the Fee Regulatory Committee shall inquire into the complaints of collecting amount in excess of the amount prescribed. Therefore, this Court finds it appropriate, in the facts and circumstances of this case, to direct the third respondent- Rajiv Gandhi University of the Health Sciences, to file necessary report with the Fee Regulatory Committee after giving an opportunity of hearing to the Management of the first respondent and the first respondent as regards the allegations of excess payments made by the petitioner so 27 that the Fee Regulatory Committee can make necessary recommendations contemplated under Section 7(4) of the KPEI Act.
18. For the reasons stated, it is held that the second and third respondents have rightly refused to approve the petitioner's admission with the first respondent for Post Graduation in M.S. Orthopaedics for the Academic year 2016-17 as the petitioner did not qualify in the entrance examination and failed to submit "Rank Card", and the petition is therefore rejected.
However, the third respondent-Rajiv Gandhi University of Health Sciences is directed to file a Report with the Fee Regulatory Committee constituted under the provisions of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 after hearing the first respondent and its Management 28 and to file Compliance Report in this regard with the Registry of this Court within six months from the date of receipt of a copy of this order.
No costs.
Sd/-
JUDGE Sd/-
JUDGE Psg/Prs*