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.15345 OF 2019(P)
PETITIONER/S:
THE PRINCIPAL
KANNUR MEDICAL COLLEGE, ANJARAKKANDI, KANNUR,
KERALA-670 612.
BY ADVS.
SRI.GEORGE POONTHOTTAM (SR.)
SMT.NISHA GEORGE
RESPONDENT/S:
1 THE ADMISSION AND FEE REGULATORY OMMITTEE
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 VISHNU P. SASI,
S/O SASIDHARAN E.P, PARAYIDAYIL HOUSE, CHITTAR
P.O.MANAKAYAM, CHITTAR VILLAGE, KONNI TALUK,
PATHANAMTHITTA DISTRICT- 689 663.
R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY
COMMITTEE FOR PROF. COLLEGES
R2 BY ADV. SRI.C.S.MANILAL
R2 BY ADV. SRI.S.NIDHEESH
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.15345/2019 -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Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed), through an order dated 14.11.2016.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 matter W.P (C) No.15345/2019 -3- 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.15345/2019 -4- collected from one Vishnu P. Sasi.
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 W.P (C) No.15345/2019 -5- 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 Sri. C.S. Manilal, learned Counsel appearing for the 2 nd respondent, the complainant before the 1 st 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 Rs.11.65 lakhs. He would state that an amount of Rs.9,00,000/- 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 the orders W.P (C) No.15345/2019 -6- 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. He would also contend that the determination of compensation payable in addition to the amount directed to be paid in terms of Ext.P1 order of the Supreme Court is justified and would state that such compensation was liable to be paid in terms of Ext.R2 (a) judgment of the Supreme Court.
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 29-03-2019 determined the amount payable to student/complainant to be a sum of Rs.14,19,000/- after deducting the amount of Rs.9,00,000/- already paid by the college. We have gone through the order dated 29-03-2019 which is 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 W.P (C) No.15345/2019 -7- 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 Affidavit filed by Sri. Vishnu P. Sasi, the student / Produced as
complainant. Ext.P6 in this writ
petition
Statement of SB Account of Sri. E.P. Sasidharan
2 A2
with Federal Bank, Chittar Branch.
9. As already noticed, the ASC passed Ext.P7 order directing the college to refund an amount of Rs.14,19,000/- to the student. This figure was arrived at by accepting the case of the father of the student that he had paid a total amount of Rs.13,17,000/- to the college authorities. After deducting a sum of Rs.11,65,000/- which was the amount collected as fee (including hostel fee), the Committee held that the amount collected over and above the fee was Rs.1,52,000/-. In terms of Ext.P1 order of the Supreme Court the college was required to refund the fees and double the amount collected over and above the fees. In addition to the above, the Committee also relied on Ext.R2 (a) judgment to conclude that an amount of Rs.8.5 lakhs should be paid to the student as compensation for loss of two years on account of cancellation of admission. The student had lost 2 years since the admissions W.P (C) No.15345/2019 -8- given in 2016 were cancelled and such cancellation became final through Ext.P1 order of the Supreme Court on 29-08-2018. Therefore the Committee determined the amount to be refunded in the following manner.
Sl. No. Particulars Amount
1 Fee including hostel fee Rs.11,65,000/-
2 Twice the amount collected over and above the Rs.3,04,000/-
fee (Rs1,52,000 x 2)
3 Amount of compensation payable Rs.8,50,000/-
4 Amount already refunded Rs.9,00,000/-
5 Balance payable (1 + 2 + 3) - 4 Rs.14,19,000/-
10. According to the college, they have received only Rs.10 lakhs towards fee and Rs.1,65,000/- towards hostel fee. In order to prove the source of Rs.13,17 lakhs, the proof affidavit referred to above had been filed by the student inter alia stating the source of funds for raising the total amount. The Committee accepted the version with reference to Ext.A2.
11. We have perused the documents referred to as Ext.A2 and the proof affidavit filed by Sri. Vishnu P. Sasi (the student), in order to determine whether there was acceptable proof regarding the source of funds to have paid a sum of Rs.13,17,000/- to the college. 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. Exhibit A2 would prove that the father of the student had withdrawn a total sum of Rs.19,50,000/- on 15- W.P (C) No.15345/2019 -9- 06-2016 / 16-06-2016. Naturally when amounts are received in addition to the regular fee, no receipt would be issued. Therefore, the source of fund is the only method for any person to prove their claim. We find that there is sufficient source for the availability of Rs.13,17,000/- alleged to have been paid to the college.
12. We have gone through R2 (a) judgment of the Supreme Court in Riya George V. Kannur Medical College (Judgment dated 21-02-2019 in W.P (C) No.1247/2018 ) to examine the question as to whether the Supreme Court had directed payment of any compensation over and above that fixed in terms of the orders dated 29-08-2018 (Ext.P1) and 04-10-2018 (Ext.P2). We find that the Supreme Court had found that the students are no doubt entitled to be compensated by the college. However it was directed that the amount shall be determined in terms of Exts.P1 & P2 orders dated 29-08-2018 and 04-10-2018. This is clear from paragraphs 27 and 28 of Ext.R2 (a) judgment. We are therefore of the view that the direction issued by the Committee to the college to pay a sum of Rs.8.50 lakhs in addition to the amount directed to be refunded / paid in terms of Ext.P1 & P2 orders cannot be sustained.
The amounts payable/refundable by the college is redetermined as under.
W.P (C) No.15345/2019 -10-
Sl. No. Particulars Amount
1 Fees including hostel fee Rs.11,65,000/-
2 Double the amount collected over and above Rs.3,04,000/-
the fee (Rs.1,52,000 x 2)
3 Total amount payable in terms of the direction Rs.14,69,000/-
of the Supreme Court
4 Amount already paid Rs.9,00,000/-
5 Balance amount payable Rs.5,69,000/-
Exhibit P7 order shall stand modified accordingly. In the result the writ petition is allowed in part. The college shall refund an amount of Rs.5,69,000/- 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 law with shall be taken by the 1 st respondent.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P. JUDGE AMG W.P (C) No.15345/2019 -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 29.8.2018 EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN MA NO 2354 OF 2018 IN SLA(C) NO 23225/2018 DATED 3.10.2018 EXHIBIT P3 TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE JYOTHISH KUMAR TO THE POLICE AS CRIME NO 314 OF 2018 EXHIBIT P4 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 2.8.2018 EXHIBIT P5 TRUE COPY OF THE OBJECTION GIVEN BY THE PETITIONER BEFORE THE COMMITTEE.
EXHIBIT P6 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH THE BANK STATEMENT OF THE FATHER OF THE 2ND RESPONDENT FROM 30.1.2016 TILL 27.6.2016 EXHIBIT P6 A TRUE COPY OF THE POST DATED CHEQUE ISSUED BY FATHER OF THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE ORDER NO ASC (P) 91/18/HO/TVM/MBBS/KMC DATED 29.3.2019 PASSED BY THE ADMISSION SUPRVISORY COMMITTEE.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R2(A) TRUE COPY OF THE JUDGMENT OF THE APEX COURT DATED 21.2.2019 IN WPC 1247/2018 EXHIBIT R2(B) TRUE COPY OF THE PROOF AFFIDAVIT IN ASC(P)91/18/TVPM/MBBS/KMC FILED BEFORE THE 1ST RESPONDENT EXHIBIT R2(C) TRUE COPY OF THE BANK ACCOUNT DETAILS EXHIBIT R2(A) TRUE COPY OF THE JUDGMENT OF THE APEX COURT DATED 21-02-2019 IN WRIT PETITION 1247/2018 EXHIBIT R2(B) TRUE COPY OF THE PROOF AFFIDAVIT IN ASC(P) 91/18/TVPM/MBBS/KMC FILED BEFORE THE 1ST RESPONDENT EXHIBIT R2(C) TRUE COPY OF THE BANK ACCOUNT DETAILS.