IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WP(C).No. 30041 of 2010(E) --------------------------------------- PETITIONER(S): ----------------------- V.S. HARITHA (MINOR, AGED 17 YEARS), T.C.6/751(4), HARITHAM, ULLOOR AKKULAM ROAD, THURAVICKAL (PO), THIRUVANANTHAPURAM-695 031, REPRESENTED BY HER GUARDIAN, P.R.VIJAYA CHANDRAN (FATHER). BY ADV. SRI.GOPAKUMAR R.THALIYAL, SRI.V.MADHURIPAN PILLAI, SRI.P.R.PRATEESH. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2. THE COMMISSIONER FOR ENTRANCE EXAMINATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001. 3. THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES, RAM MOHAN PLACE, ROOM NO.8, KOCHI-682 031, REPRESENTED BY ITS MEMBER SECRETARY. 4. THE FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES, RAM MOHAN PLACE, ROOM NO.8, KOCHI-682 031, REPRESENTED BY ITS MEMBER SECRETARY. 5. THE KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT ASSOCIATION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, INTERNATIONAL STUDENTS CENTRE, L.M.S.COMPOUND, THIRUVANANTHAPURAM-695 033. WP(C).No. 30041 of 2010(E) *ADDL. R6 IMPLEADED ADDL. R6: THE PRINCIPAL, K.M.C.T. MEDICAL COLLEGE, KOZHIKODE. *ADDL. R6 IS IMPLEADED AS PER ORDER DATED 29/09/2010 IN I.A.13556/2010. **ADDL. R7 IMPLEADED ADDL. R7: PRIYANKA K.P., D/O.PRAKASAN K.T., KALLANGATTU HOUSE, SURABHI NAGAR EAST, KAKKANAD P.O., KOCHI-682 030. **ADDL. R7 IS IMPLEADED AS PER ORDER DATED 18/11/2010 IN I.A.16051/2010. R1 & R2 BY GOVT. PLEADER MR.DILEEP MOHAN. R5 BY ADV. SRI.R.T.PRADEEP. ADDL. R6 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADV. SRI.T.C.SURESH MENON, SRI.C.A.ANOOP, SRI.P.S.APPU, SRI.JIBU P THOMAS. ADDL. R7 BY ADV. SRI.SANTHOSH MATHEW, SRI.SATHISH NINAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 30041 of 2010(E) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROSPECTS DATED 29/04/2010. EXT.P2: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN WP(C) NO. 23320/2010 DATED 02/08/2010. EXT.P3: COPY OF THE PROSPECTS DATED 01/09/2010. EXT.P4: COPY OF THE DEMAND DRAFT. EXT.P5: COPIES OF THE FEES RECEIPTS DATED 30/09/2010. EXT.P6: COPY OF THE LETTER ISSUED BY THE STABE BANK OF TRAVANCORE DATED 06/10/2010. EXT.P7: COPY OF THE LETTER SENT BY THE PETITIONER TO THE 6TH RESPONDENT DATED 14/10/2010. EXT.P8: COPY OF THE LETTER ISSUED TO THE PETITIONER BY THE BANK DATED 27/10/2010. EXT.P9: COPY OF THE LETTER SENT BY THE PETITIONER TO THE 6TH RESPONDENT DATED 30/10/2010. EXT.P10: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 6TH RESPONDENT DATED 01/11/2010. EXT.P11: COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DATED 26/10/2010. EXT.P12: COPY OF THE JUDGMENT DATED 30/09/2010 IN W.A. NO. 1678/2010. EXT.P13: COPY OF THE ORDER DATED 05/10/2010 IN R.P.NO.892/2010. EXT.P14: COPY OF THE ORDER DATED 25/10/2010 IN SLP TO APPEAL (CIVIL) NO.29350/2010. EXT.P15: COPY OF THE ORDER DATED 29/10/2010 IN SLP ATO APPEAL (CIVIL) NO.29350/2010. EXT.P16: COPY OF THE INTIMATION LETTER DATED 04/11/2010. EXT.P17: COPY OF THE BANK GUARANTEE DATED 04/11/2010. EXT.P18: COPY OF THE REPRESENTATION DATED 08/11/20110. (P.T.O.) WP(C).No. 30041 of 2010(E) EXT.P19: COPY OF THE POSTAL RECEIPTS. EXT.P20: COPY OF THE NOTIFICATION ISSUED BY THE 3RD RESPONDENT DATED 15/10/2010. EXT.P21: COPY OF THE NOTIFICATION ISSUED BY THE 5TH RESPONDENT DATED 20/10/2010. EXT.P22: COPY OF THE POSTAL ACKNOWLEDGMENT CARD. RESPONDENT'S EXHIBITS: EXT.R6(a): COPY OF THE ORDER DATED 25/10/2010 OF THE HONOURABLE SUPREME COURT IN S.L.P.(CIVIL)NO.29350 OF 2010 AND CONNECTED CASES. EXT.R6(b): COPY OF THE ORDER DATED 29/10/2010 OF THE HONOURABLE SUPREME COURT IN S.L.P.(CIVIL)NO.29350 OF 2010 AND CONNECTED CASES. EXT.R6(c): COPY OF THE ORDER DATED 30/08/2010 OF THE HONOURABLE SUPREME COURT IN S.L.P.(CIVIL)NOS.23830 & 23832 OF 2010. EXT.R6(d): COPY OF THE ORDER DATED 23/09/2010 OF THE HONOURABLE SUPREME COURT IN S.L.P.(CIVIL)NOS.23830 & 23832 OF 2010. EXT.R6(e): COPY OF THE ORDER DATED 28/10/2010 OF THE HONOURABLE SUPREME COURT IN S.L.P.(CIVIL)NOS.23830 & 23832 OF 2010. EXT.R6(f): COPY OF THE ORDER DATED 29/10/2010 OF THE HONOURABLE SUPREME COURT IN S.L.P.(CIVIL)NOS.23830 & 23832 OF 2010. EXT.R6(g): COPY OF THE RELEVANT EXTRACT OF THE PROSPECTUS DATED 01/09/2010 ISSUED BY THE 5TH RESPONDENT ASSOCIATION, ALONG WITH ANNEXURE I(4) STATEMENT REGARDING RESERVATION OF SEATS IN KMCT MEDICAL COLLEGE. //TRUE COPY// P.A. TO JUDGE rs ANTONY DOMINIC, J. ------------------------------------------- WP (C) No. 30041 of 2010 --------------------------------------- Dated this the 6th day of December, 2010 J U D G M E N T ------------------------- Pursuant to Exhibit P1 prospectus published by the 5th respondent, an entrance test was conducted and in the rank list published, the petitioner was also included. However in Exhibit P2 judgement of this Court, it was declared that the test conducted was void and inoperative and it was directed that the 5th respondent should complete the admission to the management quota in the member medical colleges from the rank list published by the 2nd respondent. 2. In the S.L.P. filed by the 6th respondent, Exhibit R6 (d) order was passed by the Apex Court. In terms of the said order the admissions were to be completed as ordered in Ext.P2 judgement, by 25.10.2010. In the Prospectus that was issued, one of the conditions for admission was that the students should furnish bank guarantee for Rs.22 Lakhs, apart from the remittance of Rs.5 lakhs towards WP (C) No. 30041 of 2010 2 caution deposit and Rs.5.5 lakhs towards first year's fee. 3. Petitioner who was included in the rank list deposited Rs.10.5 lakhs in time towards the caution deposit and the first year's fee. This is seen from Exhibit P4 receipt. There after the petitioner approached this Court by filing this writ petition and challenging clause 3.2(c) of the prospectus requiring furnishing of Bank Guarantee and the prayers sought in the writ petition reads as under: i. to declare that the condition relating furnishing bank guarantee of Rs.22 lakhs in Ext. P3 prospectus is arbitrary, illegal, unreasonable and unjust. ii. to direct the 5th respondent not to insist on furnishing bank guarantee for Rs.22 lakhs, and also the condition relating to undertaking in Annexure II relating to furnishing of bank guarantee, by not enforcing clause 3.2 (c), Note 3 to clause 3.2, clause 3.3 (i) clause 5.1 clause 5.2(m) of Ext. P3 prospectus. 4. On 29.09.2010 this Court passed an interim order directing that, on the petitioner furnishing a bond, without insisting on the bank guarantee per clause 3.2(c) of the prospectus, the petitioner shall be admitted by the 6th WP (C) No. 30041 of 2010 3 respondent, the member college, to which the petitioner was allotted by the 5th respondent. It is stated that accordingly, the petitioner made further remittance as per Exhibit P5 and was admitted in the College on 30.09.2010. 5. Against similar interim order passed by this Court, the 5th respondent filed W.A.No.1678/2010. By Exhibit P12 judgement rendered on 30.09.2010, a Division Bench of this Court allowed the appeal. However, the students involved in the appeal were allowed one week's time to furnish the bank guarantee as per the Prospectus. Subsequently in R.P.No. 892/2010 filed by the students, on 05.10.2010 Exhibit P13 order was passed by the Division Bench, granting three weeks time to furnish the bank guarantee. Thus this Court extended the time for furnishing the bank guarantee till 25.10.2010 which was the outer time limit fixed by the Apex Court in Ext.R6(d) order referred to supra. 6. When Exhibit P13 and P14 orders of the Division WP (C) No. 30041 of 2010 4 Bench were brought to the notice of this Court, in the connected writ petitions that were pending with the interim orders not to insist on bank guarantee, this Court passed a common order dated 06.10.2010, modifying the earlier interim orders and directing that the parties to the writ petitions will be governed by the aforesaid orders passed by the Division Bench. In so far as this writ petition is considered, there was no appeal and therefore by virtue of the modified order dated 06.10.2010, the petitioner had time till 25.10.2010 to furnish bank guarantee to the 6th respondent College. 7. Meantime, against Ext.P12 judgement in W.A No.1678/2010, upholding the requirement of furnishing bank guarantee, S.L.P. was filed by the students who are parties to Exhibit P12 judgement. By Exhibit P14 order rendered on 25.10.2010 the Apex Court dismissed the S.L.P, but however, time for furnishing bank guarantee was extended till 24.11.2010. Petitioner was not a party to the WP (C) No. 30041 of 2010 5 proceedings before the Apex Court and as per Exhibits P12 and P13, the petitioner should have furnished the Bank guarantee on or before 25.10.2010. She did not furnish the bank guarantee, as a result of which, the 6th respondent College cancelled her admission and admitted the additional 7th respondent in the seat that consequently fell vacant. It is so stated in paragraph 8 of the counter affidavit filed by the additional 6th respondent College. 8. While so on 28.10.2010 the 3rd respondent filed Ext.R6(e) statement before Apex Court in compliance with the directions in Exhibit R6(d) order, reporting about the steps taken for filling up seats within the time fixed by the Apex Court. It is also seen that on 29.10.2010, Supreme Court passed Ext.R6(f) order accepting the report submitted by the 3rd respondent. Thus, by the virtue of the order passed by this Court on 06.10.2010, as on 25.10.2010 the time granted to the petitioner for furnishing bank guarantee expired, the college cancelled her admission and WP (C) No. 30041 of 2010 6 another student was admitted in the seat vacated by her and all the steps taken by the management and 3rd respondent were also reported to the Apex Court, as per the report filed by the 3rd respondent. 9. According to the petitioner, she produced the bank guarantee on 04.11.2010 before the 6th respondent College which is claimed to be within the time allowed by the Apex Court. On this basis it is contended that the College acted illegally in cancelling her admission. Apparently because of the orders passed by the Division Bench which was confirmed by the Apex Court, the prayers sought for in the writ petition were not argued and instead what is now contended is that the cancellation of admission granted to the petitioner is illegal. As noticed above this contention is raised mainly on the ground that, by virtue of Ext.P14 order, Apex Court had extended time for furnishing bank guarantee till 24.11.2010 and that since the petitioner furnished her bank guarantee on 04.11.2010, her WP (C) No. 30041 of 2010 7 admission should not have been cancelled by the College. 10. However, I am unable to accept this contention raised by the counsel for the petitioner. This is for the reason that going by the order passed by the Apex Court, managements were obliged to complete the admission by 25.10.2010. On 25.10.2010, the time extended by this Court as per the modified order dated 06.10.2010 also expired. Admittedly, the petitioner did not furnish bank guarantee before that date and on the other hand, even according to her, she produced bank guarantee only on 04.11.2010. In so far as the extension of time that was granted in Exhibit P14 order of the Apex Court is concerned, the benefit of that order was available only to the parties to that proceedings and in so far as the petitioner is concerned, she was governed by common order dated 6th October 2010 passed by this Court in this writ petition. If that be so, this Court cannot find fault with the management for cancelling the admission for the reason WP (C) No. 30041 of 2010 8 that the petitioner did not furnish a Bank Guarantee before 25.10.2010 where the time available to the petitioner expired. 11. The counsel for the petitioner contended that as the petitioner had deposited Rs.10.5 lakhs, towards caution deposit and first year's fee, the management could not have cancelled her admission without notice to the petitioner. However, a reading of paragraph 8 of the counter affidavit filed by the management shows that the petitioner's mother was informed that if the bank guarantee was not furnished before 5p.m. on 25.10.2010 the admission would be cancelled. Therefore the case of the petitioner that she did not have notice is a disputed question of fact. That apart, the fact that caution deposit and first year's fee were deposited by the petitioner does not mean that a confirmed admission was granted to the petitioner. In my view, the petitioner should have complied with all the conditions specified in the prospectus, which required furnishing of WP (C) No. 30041 of 2010 9 bank guarantee also. Therefore, unless the bank guarantee was also furnished, the student cannot claim of having granted confirmed admission in the College. In that view of the matter, this contention raised by the counsel for the petitioner also lacks merit and deserves to be rejected. 12. The petitioner contended that the 7th respondent who was admitted in the college immediately after 25.10.2010 also did not furnish bank guarantee as provided in the prospectus. However, this contention of the petitioner is answered in paragraph 8 of the counter affidavit filed by the 6th respondent by contending that instead of bank guarantee, the 7th respondent deposited the entire amount in cash. Therefore this contention also has no merit. 13. Yet another aspect which deserves to be mentioned is that the prayers in the writ petition are in relation to the provision in the prospectus requiring Bank guarantee. Subsequently, though various affidavits were WP (C) No. 30041 of 2010 10 filed, several documents were produced and 7th respondent was impleaded and arguments regarding cancellation of the petitioner's admission and the alleged illegality in the admission of the 7th respondent were raised, the pleadings or the prayers in the writ petition have not been suitably amended. Therefore, this Court was not obliged to consider the contentions urged, but has dealt with the contentions, only to avoid injustice to the petitioner. For all the aforesaid reasons, I do not find merit in any of the contentions. Writ petition is dismissed. ANTONY DOMINIC, JUDGE. rkc