IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 18513 of 2011(L) --------------------------------------- PETITIONER(S): ------------------------- AMINA NAHNA.P,D/O.P.ASHRAF,AGED 17 YEARS 'THEERAM',KARANTHOOR PO, KOZHIKODE DISTRICT, REP.BY HER FATHER AND GUARDIAN P.ASHRAF. BY ADVS. SRI.GEORGE POONTHOTTAM SRI.K.M.FIROZ RESPONDENT(S): ------------------------- 1. STATE OF KERALA,REP.BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-01. 2. THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES,RAM MOHAN PALACE, COCHIN-31,REP.BY THE MEMBER SECRETARY. 3. THE KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT ASSOCIATION,THIRUVANANTHAPURAM,REP. BY ITS SECRETARY,INTERNATIONAL STUDENTS CENTRE, LMS COMPOUND,THIRUVANANTHAPURAM,PIN 695 033. *ADDL. R4 & R5 IMPLEADED. 4. DHUTHY R., AGED 18 YEARS, D/O. B.REGHU, NEERAJ, PULIYOORVANCHI SOUTH, EDAKKULANGARA P.O., KARUNAGAPPALLY. 5. SHANI S., AGED 19 YEARS, D/O. NUJUM A., T.C. 46/499, KALLIVILAKOM VEEDU, PALLI STREET, POONITHURA P.O, THIRUVANANTHAPURAM 695 026. *ADDL. R4 & R5 ARE IMPLEADED AS PER ORDER DTD. 29.7.2011 IN IA. 12441/2011. W.P.(C) NO.18513/2011 *ADDL. R6 IMPLEADED. 6. DR.S.M.C.S.I. MEDICAL COLLEGE, KARAKONAM 695 504, REPRESENTED BY ITS PRINCIPAL DR.S.M.C.S.I MEDICLA COLLEGE, KARAKONAM. ADDL. R6 IS IMPLEADED AS PER ORDER DTD.17/08/2011 IN IA. 12701/2011. R1 BY ADV. GENERAL SRI.K.P.DANDAPANI R2 BY ADV. SRI.S.KRISHNAMOORTHY R3 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE R3 BY ADVS. SRI.A.MOHAMED MUSTAQUE, SRI.ANIL K.NARENDRAN. ADDL. R4 & R5 BY ADVS. SRI.SANTHOSH MATHEW, SRI.SATHISH NINAN, SRI.JENNIS STEPHEN, SRI.A.ABDUL KHARIM. ADDL. R6 BY ADV. SRI.R.T.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2011, ALONG WITH WPC NO. 15186 OF 2011 THE COURT ON 17/08/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.18513/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MARK LIST ISSUED BY THE CONTROLLER OF EXAMINATIONS, CENTRAL BOARD OF SECONDARY EDUCATION. P2:- COPY OF THE RANK AS ASSIGNED IN FAVOUR OF THE PETITIONER IN THE ENTRANCE EXAMINATION CONDUCTED BY THE COMMISSIONER FOR ENTRANCE EXAMINATIONS. P3:- COPY OF THE ORDER PASSED BY THE SUPREME COURT IN WPC. 287/ 2011 DTD. 30.6.2011. P4:- COPY OF THE PROSPECPTUS FOR ADMISSION TO MBBS 2011. P5:- COPY OF THE JUDGMENT IN WPC. NO.22499/2008 DTD. 5.8.08. P6:- COPY OF THE ORDER PASSED BY THE FEE REGULATORY COMMITTEE DTD. 16.4.2011. P7:- COPY OF THE INTERIM ORDER IN WP(C) 13644/2011 DTD. 27.5.2011. P8:- COPY OF THE ADMIT CARD. RESPONDENT'S EXHIBITS R2(A):- COPY OF THE ORDER OF THE 2ND RESPONDENT COMMITTEE DTD. 7.5.2011 . R2(B):- COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE HELD ON 7.7.2011. R2(C):- COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE HELD ON 8.7.2011. R2(D):- COPY OF THE REPLY GIVEN BY THE 3RD RESPONDENT BEFORE THE COMMITTEE. R2(E):- COPY OF THE HONOURABLE SUPREME COURT ORDER DTD. 30.6.2011 IN WRIT PETITION (CIVIL) 287/2011. R3(a):- COPY OF THE COVERING LETTER DTD. 12.4.2011. 3(b):- COPY OF THE NOTICE DTD. 30.4.2011. R3(c):- COPY OF THE EXPLANATION/CLARIFICATION SUBMITTED BY THE ASSOCIATION BEFORE THE 2ND RESPONDENT. tss W.P.(C) NO.18513/2011 R3(d):- COPY OF THE ORDER DTD. 7.5.2011. R3(e):- COPY OF THE WRITTEN SUBMISSION DTD. 17.5.2011. R3(f):- COPY OF THE INTERIM ORDER DTD. 7.6.2011 OF THIS HONOURABLE COURT IN WPC. 15186/2011. R3(g):- COPY OF THE PAPER BOOK IN WPC. 287/2011. R3(h):- COPY OF THE ORDER DTD. 30.6.2011 OF THE APEX COURT IN WPC. 287/2011. R3(i):- COPY OF THE STATEMENT DT.D 4.7.2011. R3(j):- COPY OF THE ORDER DTD. 4.7.2011. R3(k):- COPY OF THE STATEMENT DTD. 5.7.2011. R3(l):- COPY OF THE EXTRACT OF THE MINUTES OF THE MEETING. R3(m):- COPY OF THE EXTRACT OF THE MINUTES OF THE MEETING. R3(n):- COPY OF THE STATEMENT DTD. 11.7.2011. R3(o):- COPY OF THE STATEMENT DTD. 11.7.2011. R3(p):- COPY OF THE INTERIM ORDER DTD. 31.7.2008 OF THIS HONOURABLE COURT IN WP(C) 22499/2008. R3(q):- COPY OF THE ORDER DTD. 25.8.2008. R3(r):- COPY OF THE ORDER DTD. 12.7.2010 OF THE APEX COURT IN SLP (CIVIL) NOS. 19247 AND 19936 /08. R3(s):- COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT IN SLP 23830- 23832/2010. R3(t):- COPY OF THE ORDER PASSED BY THE HONOURABLE SUPREME COURT IN SLP 23830-23832/2010. R4(1):- COPY OF THE MARK-LIST OF THE PETITIONER NO.1 IN PLUS-TWO EXAMINATION CONDUCTED BY THE CENTRAL BOARD OF SECONDARY EDUCATION. tss W.P.(C) NO.18513/2011 R4(2):- COPY OF THE PRINT OUT IN RESPECT OF THE RANK OBTAINED BY THE SIT PETITIONER IN THE ENTRANCE EXAMINATION CONDUCETE DBY THE COMMISSIONER FOR ENTRANCE EXAMINATION. R4(3):- COPY OF THE PRINT OUT SHOWING THE IST PETITIONER'S RANK NO.39 FOR THE ENTRANCE EXAMINATION CONDUCTED BY THE 3RD RESPONDENT WITH ROLL NO.1462. R4(4):- COPY OF THE MARK-LIST OF THE 2ND PETITIONER IN PLUS TWO EXAMINATION CONDUCTED BY THE BOARD OF HIGHER SECONDARY EDUCATION. R4(5):- COPY OF THE PRINT OUT IN RESPECT OF THE RANK OBTAINED BY THE 2ND PETITIONER FOR THE ENTRANCE EXAMINATION CONDUCTED BY THE 3RD RESPONDENT. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ================ W.P.(C) NO. 18513 OF 2011 ==================== Dated this the 17th day of August, 2011 J U D G M E N T “The learned Judges of the High Court, if we may say so with respect in a well-considered opinion expressed their anguish at the insensitivity of the authorities administering medical admission in the State to the need to prevent occasions for repetitive grievances from the student community and had occasions to observe: 'Shakespeare in Othello has written “Chaos is come again”. This Court has witnessed chaos almost annually when time for admission to MBBS/BDS courses case....'.” These observations of the Apex Court in Convenor, MBBS/BDS Selection Board v. Chandan Mishra (1995 Supp.(3) SCC 77) were quoted in the judgment in Fathimma Haneena P. v. State of Kerala and Others (2008 (3) KHC 544), where this Court expressed its anguish about the entrance examination conducted by the 3rd respondent for admission to its member colleges. Again in 2010, in the judgment in Noorbina Banu v. State of Kerala (2010 (3) KLT 581), it was repeated. Still, the insensitivity of the authorities and grievances from the student community continues and the facts stated hereafter would show that there has not been any improvement. WPC No. 18513/2011 :2 : 2. In P.A.Inamdar v. State of Maharashtra and others (2005 (6) SCC 537, the Apex Court held thus:- “136. ……………………………………………………………… ………… …………………………………. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test (“CET” for short) must be one enjoying utmost credibility and expertise in the matter. ……………………………………………………………………….. 137. ………………………………………………………………… ……………………………………… All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated herein above, can be taken over by the State substituting its own procedure. The second question is answered accordingly.” 3. The 3rd respondent is an association of 11 Private Self Financing Medical College Managements. The Entrance Examination conducted by the Association in 2008, was set aside by this Court WPC No. 18513/2011 :3 : in Fathimma Haneena's case (supra), where, in paragraph 19(b) among various directions, it was directed thus:- “I also direct that subject to any future change in law, for coming years, the following requirements shall be strictly complied with by unaided Medical Colleges, who opt to conduct their own entrance test for selection of students for admission. (a). …………………………………………………………… ……… (b). At every stage of the admission process, viz, issue of notification inviting applications, preparation of prospectus, issue of application forms, setting of question papers, deciding the method of valuation, publication of list of applicants, conduct of written test, preparation of rank list, counselling etc., approval from the Admission Supervisory Committee appointed under S.4 of Act 19 of 2006 shall be mandatorily obtained, failure of doing which also would render such selection invalid. (emphasis supplied) Again in 2010, entrance examination conducted by the Association and the consequential admissions were held illegal in the judgment in Noorbina Banu's case, and it was inter alia found thus:- “ An Effective supervision would be there only if the 5 th respondent obtained prior approval for the prospectus as also the notification inviting application. In fact, the 5th respondent ought to have consulted the Committee before taking decision at every stage of the test like the mode of setting question paper, selection of the examiners to set the question papers, the mode of valuation, selection of the valuers and the like. Although WPC No. 18513/2011 :4 : the 5th respondent has produced some communications in this regard addressed to the Admission Supervisory Committee, it remains a fact that there was no effective supervision by the Admission Supervisory Committee for the Common Entrance test. At no stage of the test was there prior consultation with the Admission Supervisory Committee. No representative of the Admission Supervisory Committee supervised the entrance test. There was no request to the Committee to make arrangements in that regard.” (emphasis supplied) 4. This year also, the Association decided to conduct an Entrance Examination for admission to MBBS Course, to its member Colleges. Under cover of Ext.R3(a) letter, a copy of the prospectus proposed to be issued was submitted to the second respondent Committee for approval. In this letter, the request of the Association was that “the prospectus may kindly be approved to enable issuance advertisements ” . The second respondent the Admission Supervisory Committee constituted under 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 19 of 2006], considered the request of the Association and Ext.R3(b) notice WPC No. 18513/2011 :5 : dated 30.4.2011 was issued by the Committee directing the Association to submit their explanation/ clarification on the 11 points mentioned therein. Ext.R3(c) is the clarification furnished by the Association, where again, it requested thus:- “The Association has proposed to issue advertisement on 7.5.2011 as submitted on 12.4.2011. The Association would earnestly request the Hon.Committee to accord sanction for issuance of prospectus and to proceed further.” 5. The Committee in its meeting held on 7.5.2011, considered the request and issued Ext.R3(d) letter to the Association. In this letter, referring to the explanation and also the judgment of this Court in Noorbina Banu's case, the Committee held thus:- “in order to have effective supervision and control particularly in respect of setting of question papers, selection of examiners, valuation, preparation of the merit list, the committee cannot allow the Association to proceed with the process as proposed by them. The Committee also found that the entire process for the conduct of the test and the preparation of the rank list etc., shall be done within the time schedule prescribed by the MCI. Taking all these factors into account the Committee decided to authorise the Commissioner for Entrance Examination who is a member of the Admission Supervisory Committee to conduct the entrance test and to submit the rank list to the committee and to perform all the duties and functions in relation thereto. He is also authorised to take all effective steps in order to make the entire admission process as fair, transparent and merit based. The Secretary on behalf of the Association agreed to the above decision of the WPC No. 18513/2011 :6 : Committee. The Secretary of the Association is directed to submit the draft notification for publication and all other documents, which are found necessary for prior approval at every stage in the admission procedure. The Committee after discussions finally decided to approve the prospectus submitted by the Management Association subject to the fulfillment of the above directions/observations. The copy of the prospectus as amended shall be submitted before the Committee within a period of three days from the date of publication.” (emphasis supplied) 6. According to the Association, on noticing that in Ext.R3(d), it was recorded, that the Committee's decision authorizing the Commissioner for Entrance Examination to conduct the test and submit rank list and to perform all duties and functions in relation thereto, was agreed to by him, its Secretary submitted Ext.R3(e) letter 17.5.2011 stating that he had not given any such agreement and requested to delete the observation from Ext.R3(d) order. The relevant portion of Ext.R3(e) reads as under. “I am the Secretary of the Association. At no point of time, I had given any such agreement. There was also opportunity given for me to agree any such agreement to the Committee. Further I request you to delete the observation of the Committee from the order.” (emphasis supplied) 7. According to the Association, in the meanwhile, the Model WPC No. 18513/2011 :7 : Code of Conduct declared by the Election Commission of India was in force from 1.3.2011 till 14.4.2011 and therefore, the Government could not take any policy decision regarding the consensual agreement to be entered into with the Association. As a result, procedure for conducting the written test to management seats could not be completed within the time prescribed by the Medical Council of India (MCI) and therefore, the Association represented to the MCI for enlargement of time. It is stated that their inability to conduct the entrance test before 31.5.2011 was also intimated to the second respondent. Further in W.P.(C).15186/2011 filed by the petitioner, this Court also passed Ext.R3(f) order directing maintenance of status quo and recording the undertaking of the third respondent that no examination will be conducted unless otherwise permitted by the Apex Court. 8. It is stated that in such circumstances, the third respondent filed W.P.(C).287/2011 before the Apex Court seeking an order extending the last date for conducting the examination to MBBS Course, 2011-12 for one month. A copy of this writ petition is Ext.R3(g). In the said writ petition, the Supreme Court passed WPC No. 18513/2011 :8 : Ext.R3(h) order dated 30.6.2011 which reads as under:- Kerala Private Medical College Management Association has filed this writ petition seeking the following relief: “Pass an order extending the last date of 30th May, 2011 for conducting the entrance examination for the MBBS Course for the academic year 2011-12 for one month as mentioned in Appendix E to the Graduate Medical Education (Amendment) Regulation, 2004 issued under the Indian Medical Council Act, 1956” Heard learned counsel for the petitioner as well as for the respondent-Medical council of India. Considering the details furnished in support of the above prayer and the materials placed, we intend to accede to the request of the petitioner to the following extent: For conducting written test, the time is extended upto 15th July, 2011 and the results to be published on or before 20th July, 2011. The writ petition is disposed of in the above terms.” 9. Thereafter, Association faxed Ext.R3(i) statement dated 4.7.2011 to the Committee, stating thus:- “Considering the time frame fixed by the Honourable Supreme Court of India for conduct of the test and publication of result, the advertisement is arranged to be published in two Malayalam and one English major dailies. The Examination is proposed to be held at Kozhikode on 14.6.2011. The Honourable Committee may be pleased to make necessary arrangements for supervision of the admission process” (emphasis supplied) 10. On receipt of Ext.R3(i) statement, the Committee WPC No. 18513/2011 :9 : considered the matter on 4.7.2011. In so far as the prospectus is concerned, it is stated in Ext.R3(j) order thus:- “It is true that the admission Supervisory Committee as per the order dated 7.5.2011 approved the prospectus submitted by the Association subject to the fulfillment of certain conditions laid down therein. The Committee also directed that the copy of the prospectus as amended shall be submitted within a period of 3 days from the date of publication. So far amended copy of the prospectus not produced.” (emphasis supplied) Thereafter, referring to Noorbina Banu's case, the Committee stated that :- “the Secretary of the Association was also directed to submit draft notification for publication and all other documents, which are found necessary for prior approval at every stage of the admission procedure”. 11. Proceeding further, referring to the request of the Association in Ext.R3(i) that the Committee may make arrangements for supervision of the admission process, the Committee directed thus:- “It must be clarified as to whether the Committee has to conduct the entrance test after preparing the question papers and also complying all other requirements.” 12. In the purported compliance of Ext.R3(j), the Association filed Ext.R3(k) statement dated 5.7.2011 clarifying that, the dates indicated in Ext.R3(i) were incorrect, producing the notification WPC No. 18513/2011 :10 : inviting application, the amended copy of prospectus and the certified copy of Ext.R3(h) judgment. This statement concludes with the following request; “Considering the time frame fixed by the Honourable Supreme Court of India for the conduct of the test and publication of result, the Honourable Committee may be pleased to ensure that the test is conducted on time under the supervision of the Committee.” 13. Accordingly, the Committee considered the matter on 7.7.2011 and Ext.R3(l) is the minutes. In this minutes also the Committee referred to Noorbina Banu's case and held thus:- “In view of the above decision apart from the preparation of prospectus, issue of application forms, setting of question papers, deciding the method of valuation, publication of list of applicants, conduct of written test, preparation of rank list, counseling etc., approval from the Admission Supervisory Committee shall be mandatorily obtained, failure of doing so would render the selection process invalid.” (emphasis supplied) 14. Regarding the conduct of the test and its role, the Committee, stated thus:- “During the discussion the representative did not specifically request the Committee to conduct the test but they requested only to supervise the conduct of the test. In other words the Association itself is conducting the test and the role of the Committee is only to oversee the process of such test. As per the decision of the Honourable High Court referred to above, the Association is mandatorily bound WPC No. 18513/2011 :11 : to obtain prior approval from the Committee especially for setting of question papers, selection of examiners, valuation, preparation of rank list etc. so far no attempt has been made by the Association to supply the details regarding the setting of question papers, selection of examiners, valuation, preparation of rank list etc., and as to how the confidentiality of the process could be maintained by the Association. One of the most crucial point is with regard to the preparation of question papers and its secrecy. In order to guarantee the secrecy, various details are required from the Association. During the discussion held today, the Committee did not get any such valuable guidance of adequate information from the Association. In the above background the Committee finally decided to hold a meeting at Trivandrum tomorrow (8.7.2011) and directed the representative of the Association to produce all the above details for scrutiny of the Committee for taking a final decision thereon.” 15. Accordingly, the Committee again considered the matter on 8.7.2011 and in Ext.R3(m) minutes, it ordered thus:- “In view of the above situation, the Committee directed the Management Association to file a statement with regard to the steps taken by the Association for ensuing the transparency and confidentiality in setting of question papers, method of valuation, conduct of the written test, preparation of rank list etc. After detailed discussion the Committee also directed the Management Association to submit the copy of the original agreement to be executed with the Government as expeditiously as possible. The Committee also directed the Controller of Examination appointed by the Management Association to submit a detailed report regarding the setting of question papers, method of valuation, conduct of the written test, preparation of rank list etc, for the scrutiny of the Committee. The Association shall submit all the above documents/statements/report as expeditiously as possible at any rate before 4.00 PM on 11.7.2011.” WPC No. 18513/2011 :12 : 16. It was while so, that on 7.7.2011 that this writ petition was filed before this Court for a declaration that the competitive Entrance Examination proposed through Ext.P4 prospectus published by the Association is illegal and that no candidate can be admitted from the list to MBBS Course for the academic year, 2011- 12. There is a further prayer to direct the first respondent, the State, to take over the admission in the member colleges of the Association. The main contention raised by the petitioner is that the steps taken by the Association for conducting the Entrance Examination are in violation of the provisions contained in Act 19 of 2006 and the judgments in Fathimma Haneena's case and Noorbina Banu's case. On 8.7.2011 this Court admitted the writ petition, ordered notice to be served and posted the case to 12.7.2011. 17. In the meanwhile, as directed by the Committee in Ext.R3 (m), the Association submitted Ext.R3(n), before the Committee, enclosing Ext.R3(o) statement of its Controller of Examinations. In Ext.R3(n) again, the Association requested the Committee to grant necessary approval at the earliest. In Ext.R3(o), in order to satisfy WPC No. 18513/2011 :13 : the Committee that the triple test laid down in the judgment in P.A.Inamdar's case has been ensured, the Controller of Examinations has stated thus:- “Three sets of question papers are arranged from examiners who are expert in the field in and outside Kerala. From the three sets, one set will be chosen by lot, printed, packed and sealed. The sealed packets of question papers will be handed over to the Chief Superintendent on the day previous to the examination. The Chief Superintendent will open the packets in the presence of two invigilators twenty minutes before the commencement of examination in respect of the paper concerned. Immediately after the examination, the Chief Superintendent is required to collect the used question and answer booklets, bundle, pack seal and hand over to the Controller of Examination. The answer books will be got valued by examiners, preferably by teachers, and the result will be published in the website of the Association on or before 20.7.2011, ie, the time limit fixed by the Honourable Supreme Court of India. Soon after the publication of the result, the candidates will be required to exercise online opinion and allotment of candidates will be made on the basis option exercised. The allotted candidates may take admission before 30.7.2011 and classes will be commenced from 1.8.2011. The above schedule of selection process is fixed as per the direction of the Honourable Supreme Court of India in W.P.(C).287/2011 and Medical Council of India regulation.” 18. On 12.7.2011, this case was adjourned to 13.7.2011, and by that time, the Committee had also filed an affidavit. On 13.7.2011, after hearing all parties, this Court passed an interim WPC No. 18513/2011 :14 : order, paragraph 16 and 17 of which reads as under:- 16.All these prima facie findings would justify an order preventing the Association from proceeding further with the conduct of the entrance examination. However, when the case was adjourned, learned senior counsel for the third respondent submitted that more than 1400 students have applied in response to Ext.P4 prospectus and that the examination is scheduled to be held at 10. am on 14.7.2011. Therefore, at this late stage, if such an order is passed that will cause serious prejudice to all these innocent students. In order only to avoid such a hardship, I pass the following order: 17. The examination now scheduled pursuant to Ext.P4 prospectus will be held as scheduled and as permitted by the Apex Court,