IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 30330 of 2010(M) -------------------------- PETITIONERS: --------------------- 1. JOVIAL JOSE, NADAPUZHAKAL, THODUPUZHA, IDUKKI. 2. RAIHNA I, ALUVILA, KAMBARADI, PORUVAZHY P.O., KOLLAM. 3. SWATHY KRISHNA B.S., KRISHNA KRIPA, TC 45/1098, VALIYATHURA, THIRUVANANTHAPURAM. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 695 001. 2. THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES, RAM MOHAN PALACE, ROOM NO.8, ERNAKULAM, REPRESENTED BY ITS MEMBER SECRETARY, KOCHI - 11. 3. THE KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT ASSOCIATION, THIRUVANANTHAPURAM. REPRESENTED BY ITS SECRETARY, INTERNATIONAL STUDENTS CENTRE, LMS COMPOUND, THIRUVANANTHAPURAM. 695 033. 4. KARUNA MEDICAL COLLEGE, VILAYODI, CHITTOOR, PALAKKAD - 678 103, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR. R1 BY GOVERNMENT PLEADER, SRI.DILIP MOHAN R3 BY ADV. SRI.R.T.PRADEEP R4 BY ADV. SRI.ANIL K.NARENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30330 of 2010(M) ---------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS ------------------------------------- EXT.P1. COPY OF JUDGMENT DT. 2.8.2010 IN WP.(C) NO.22084/2010 EXT.P2. COPY OF PROSPECTUS DATED 1.9.2010 ISSUED BY THE 5TH RESPONDENT. EXT.P3. COPY OF LIST PUBLISHED AS PER NOTIFICATION DT. 26.9.2010 EXT.P4. COPY OF ALLOTMENT MEMO ISSUED TO THE 1ST PETITIONER EXT.P5. COPY OF ALLOTMENT MEMO ISSUED TO THE 2ND PETITIONER. EXT.P6. COPY OF ALLOTMENT MEMO ISSUED TO THE 3RD PETITIONER. EXT.P7. COPY OF CERTIFICATE ISSUED BY STATE BANK OF TRVANCORE PORUVAZHY BRANCH TO THE 2ND PETITIONER. EXT.P8. COPY OF LETTER DT. 7.10.2010 RECEIVED FROM THE THODUPUZHA BRANCH OF STATE BANK OF TRAVAN CORE. RESPONDENTS EXHIBITS -------------------------------------- EXT.R4(a) COPY OF NOTIFICATION DATED 28.9.2010 PUBLISHED IN THE WEBSITE OF THE 3RD RESPONDENT. EXT.R4(b) COPY OF ALLOTMENT MEMO DT. 28.9.20-10, PRODUCED BY 4 CANDIDATES ADMITTED IN KARUNA MEDICAL COLLEGE. EXT.R4(c) COPY OF ORDER DT. 8.10,.2010 IN SLP (CIVIL) NO.29350/2010 OF THE HONOURABLE SUPREME COURT OF INDIA. P.A. TO JUDGE / TRUE COPY / VK ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.30330 OF 2010(M) -------------------------------------------------- Dated this the 20th day of October, 2010 J U D G M E N T Petitioners seek to quash clause 5.2(m) of Ext.P2, the prospectus for admission to Medical Colleges under the 3rd respondent. Petitioners also seek a direction to the respondents to admit them to MBBS course in accordance with the allotment made as per Exts.P4,P5 and P6 allotment memos. 2. Briefly stated, the facts of the case are that, in the Medical Entrance Examination conducted by the Commissioner for Entrance Examination of the first respondent, the petitioners had secured rank Nos.6983, 3999 and 11160 respectively. After Ext.P1 judgment was rendered by this court, declaring the entrance examination conducted by the 3rd respondent and all consequential steps taken illegal, Ext.P2 prospectus was published by the 3rd respondent inviting applications from candidates who had appeared in the Common Entrance Test conducted by the Commissioner for Entrance Examination and are qualified in terms of the eligibility prescribed by the Medical Council of India for admission to MBBS course in the colleges WPC.No. 30330/2010 :2 : mentioned in the Prospectus. 3. Clause 2.4 of the prospectus provided the schedule of selection and admission, which in so far as it is relevant, prescribed that, the provisional allotment list of candidates will be published on 8.9.2010 and that demand drafts for Rs.5.5 lakhs towards tuition fee for the first year and Rs.5 lakhs, towards interest free refundable caution deposit should be remitted to the Secretary of the 3rd respondent on or before 5 p.m. on 11.9.2010. Clause 3.2 of the prospectus provided the fee structure and Bank Guarantee, which inter alia provided for annual tuition fee of Rs.5.5. lakhs, interest free refundable caution deposit of Rs.5 lakhs and that the candidates shall submit before the college concerned, bank guarantee obtained from a nationalised Bank for Rs.22 lakhs for 5 years towards the tuition fee for the remaining 4 years of the course. Clause 5.2 laid down the payment of fee and sub clause(m) again provided for furnishing of Bank Guarantee of Rs.22 lakhs. Note attached to this clause made it clear that the candidates will not be given any extension of time to produce the document/certificates or for production of Bank Guarantee. (emphasis supplied) WPC.No. 30330/2010 :3 : 4. In response to Ext.P2 prospectus, the petitioners submitted their applications and as provided in the prospectus, they also remitted fee and interest free refundable caution deposit within the time specified. This is not a matter of dispute. Subsequently, Ext.P3 notification dated 26.9.2010 was published by the 3rd respondent, containing the list of candidates who were provisionally found eligible for final allotment. This notification provided that candidates, found eligible for final allotment shall exercise his/her option on or before 6 p.m. on 27.9.2010 through the website of the 3rd respondent and that final allotment will be made on 28.9.2010 and that allotted candidates shall take admission in the college concerned on or before 30.9.2010, submitting all relevant documents mentioned in clause 5.2 of the prospectus which included the bank guarantee for Rs.22 lakhs as well. In the provisional list, petitioners' names were included at Sl.Nos.160,170 and 233 respectively. 5. In pursuance to Ext.P3 notification, Exts.P4, P5 and P6 allotment memos were issued allotting the petitioners to the 4th respondent college. Exts.P4, P5 and P6 allotment memos carry the date 29.9.2010. In this writ petition, the case of the WPC.No. 30330/2010 :4 : petitioners is that, the allotment memos were issued only on 29.9.2010 and that as per the allotment memos they were to take admission in the 4th respondent college on or before 30.9.2010. It is stated that the petitioners managed to reach the 4th respondent college at Palakkad on 30.9.2010 itself, and that, even before verifying the documents, the 4th respondent demanded bank guarantee for Rs.22 lakhs as provided in clause 3.2 of Ext.P2 prospectus. According to the petitioners, they were unable to procure Bank Guarantee primarily for the paucity of time and as 30th September, 2010 was a Bank holiday. It is stated that in view of this, petitioners requested the 4th respondent to give them adequate time to submit the bank guarantee and offered post dated cheques for advance payment of one year fee and even title documents of the property owned by them were offered as security for furnishing bank guarantee. It is stated that, despite all this, the 4th respondent rejected their request and closed the admission at 4.p.m. on 30.9.2010. 6. According to the petitioners, there was a deliberate attempt on the part of the 4th respondent to deny admission to candidates like them by prescribing a very short period for WPC.No. 30330/2010 :5 : furnishing bank guarantee after the final allotment is made. It is also their specific case that out of 23 students allotted to the 4th respondent from the list contained in Ext.P3 notification, only 2 students who had secured interim orders from this court, directing that bank guarantee shall not be insisted, alone were allowed to join the College. It is in this background that the writ petition has been filed seeking the reliefs mentioned above. 7. Notice was ordered and counter affidavit has been filed on behalf of the 4th respondent. Other respondents have not filed any counter affidavit. 8. According to the 4th respondent, the allotment memos were published in the website of the 3rd respondent on 28.9.2010 and the candidates were asked to get the allotment memos printed and take admission in the allotted college on or before 30.9.2010. They have produced Ext.R4(a) notification dated 28.9.2010 published in the Website of the 3rd respondent in this behalf. They have also produced as Ext.R4(b), four allotment memos to substantiate their contention that the allotment memos could be generated from the Website on 28.9.2010 itself. On this basis, the 4th respondent is seeking to contradict the case of the WPC.No. 30330/2010 :6 : petitioners that the allotment memos were published only on 29.9.2010. Before proceeding further, it should be clarified that in the light of these averments in the counter affidavit and the documents produced, it is not possible to accept the case of the petitioner that the allotment memos were published only on 29.9.2010. 9. In so far as the issue relating to Bank Guarantee is concerned, it is stated that it was evident from the prospectus itself, that the candidates were required to furnish bank guarantee at the time of admission to the college concerned. By this, they deny the allegation of the petitioners that only short time was allowed to furnish bank guarantee. They denied the allegation that the petitioners had requested the college to give them adequate time to submit the bank guarantee and that the petitioners had offered to submit post dated cheques for advance payment of one year fee or offered as security, title deed of property owned by them. The case of the 4th respondent is that since the petitioners failed to comply with the requirement of furnishing bank guarantee in terms of the mandatory conditions of prospectus, they were not granted admission on 30.9.2010. WPC.No. 30330/2010 :7 : 10. The 4th respondent also rely on the judgment of the Apex Court in Mridul Dhar and Anor. V. Union of India & Ors.(2005(2) SCC 65) and Medical Council of India v. Manas Ranjan Behera and others (2010(1)SCC 173) to contend that admission to MBBS course beyond the cut off date of 30.9.2010, is impermissible. It is also stated that no attempt was made by them to deny admission to the petitioners and that they had no intention to exclude any of the eligible candidates from the ranked list. The counter affidavit concludes by stating that “it is submitted that out of 23 candidates allotted to Karuna Medical College, all the students except the petitioners herein joined the college on or before 30.9.2010. One student left the college and therefore, out of 23 seats, 4 seats are now lying vacant.” (emphasis supplied). Thus the tenor of the counter affidavit filed by the 4th respondent is that except petitioners, the remaining candidates allotted from Ext.P3 list published by the 3rd respondent have all complied with the terms of the prospectus and were granted admission in their college. 11. To this counter affidavit, petitioners have filed a reply affidavit along with I.A. No.14328/2010. In paragraph 5 of the WPC.No. 30330/2010 :8 : affidavit, it is averred that the 4th respondent put to strict proof regarding the averment that out of the 23 candidates allotted all except the petitioners have joined the college on or before 30.9.2010. It is further stated that even assuming that all allotments were made on 28.9.2010, candidates could not have procured the bank guarantee and joined the 4th respondent college in the remaining 2 days time. It is further averred that, on 30.9.2010, the petitioners and two others, who had challenged clause 3.2(c) of Ext.P2 prospectus and obtained interim orders not to insist on furnishing of bank guarantee, alone had come to join the 4th respondent college, that the petitioners were present in the college from 10 a.m. to 5.p.m and that no one else had turned up. It is specifically averred that if all 19 seats have been filled up as claimed by the 4th respondent, then none of the said 19 candidates had produced the bank guarantee as provided in the prospectus and that evidently the 4th respondent did not insist on furnishing bank guarantee in the case of 19 students who were admitted either on 30.9.2010 or after the said date. On this basis, the petitioners sought a direction to the 4th respondent to produce the bank guarantees submitted by the 19 students said WPC.No. 30330/2010 :9 : to have been admitted in the college on or before 30.9.2010. 12. Considering the aforesaid averments made by the petitioners, this court passed order dated 13.10.2010 requiring the 4th respondent to file an affidavit disclosing the details of the bank guarantees furnished by the 19 students who were admitted in their college, between 28.9.2010 and 30.9.2010. In compliance with the said direction, affidavit dated 18th October, 2010 has been filed by the 4th respondent, paragraph 3 of which, being relevant, reads as under, “It is submitted that out of the 19 candidates admitted on or before 30.9.2010, two students, namely Nitin Hari and Hareesh Krishnan.H, secured admission based on the orders passed by this honorable Court and they are granted time till 25.10.2010 to produce bank guarantee. The remaining 17 students, instead of furnishing bank guarantee offered cash and cheque in lieu of the bank guarantee of Rs.22 Lakhs and sought time to produce the bank guarantee and requested to receive the cash and cheque as security. In the above circumstances, they were asked to produce bank guarantee at the earliest WPC.No. 30330/2010 :10 : and to take back the cash and cheque given as security. It is on the basis of this arrangement they were given admission. Out of the 17 students, Krishna Gopalakrishanan, deposited Rs.22 lakhs at the time of admission. The remaining 16 students, namely Priyanka Das, Nissar Hassan Amritha Thomas, Nazeela V.P., Priyanka P.V., Sidharth. S, Aswhin Paul, Abnas Mon, Rosemary Paul, Arya Lakshmi Rajan, Uttara, Muhammed Althaf, Dixon Thomas, Shahid S. Hameed, Bindu B and Shajila Mohammed deposited amount ranging from Rs.5.38 lakhs to Rs.12 lakhs and handed over cheque for the balance amount, at the time of admission.” 13. Thus from paragraph 3 of the additional affidavit of the 4th respondent extracted above, it is proved that, at least 17 candidates who did not comply with the requirements of furnishing bank guarantee as prescribed by the prospectus were admitted by the 4th respondent college, while at the same time, the petitioners were denied admission on the ground that they did not comply with the requirement of furnishing bank guarantee as provided in the prospectus. At this stage, it is also to be WPC.No. 30330/2010 :11 : mentioned that, when the writ petition was taken up for hearing on 19.10.2010, counsel for the petitioners made a submission that all the 17 students, who were admitted in violation of the prospectus, were included in the list prepared by the 3rd respondent, which was set aside by this court in Ext.P1 judgment. This submission has been confirmed as factually correct by the counsel appearing for the 4th respondent, who of course, pointed out that these candidates had higher ranking than the petitioners. 14. Although, in this writ petition, the main prayer sought by the petitioners is to set aside clause 5.2(m) of the prospectus, requiring the candidates to furnish bank guarantee, the said prayer was not pressed before me, and therefore, I have not examined the validity of the said provision. 15. The only plea that was raised by the counsel for the petitioners is that, they were always willing and even now willing to furnish bank guarantee as provided in the prospectus, and therefore, they should be treated equally with the 17 students, who were admitted by the 4th respondent college, and on that basis, accepting bank guarantee, petitioners should also be WPC.No. 30330/2010 :12 : admitted in the college. 16. At the outset itself, it requires to be noted that, in the counter affidavit filed by the 4th respondent college, the attempt was to justify denial of admission to the petitioners, on the ground that they did not comply with the conditions of the prospectus in so far as it required the students to furnish bank guarantee and to explain that those who have complied with the conditions of prospectus have been admitted. It is true that the prospectus required the students to furnish bank guarantee and prospectus also provided the date before which the bank guarantee should have been furnished by the students. The validity of this provision of the prospectus is also not disputed. However, the facts that are now disclosed through the additional counter affidavit filed by the college demonstrates that the college did not insist on the condition of bank guarantee at least in so far as 17 out of 23 students allotted from the list contained in Ext.P3 notification are concerned. All these 17 students are none other than those who were selected for admission in the member colleges of the 3rd respondent, which was interfered with by this court in Ext.P1 judgment. This in fact makes probable the case of the petitioners WPC.No. 30330/2010 :13 : that the relaxation was given to the 17, only to pave the way for their admission despite being ineligible. 17. The 4th respondent has no case that in terms of Ext.P4, P5 and P6 allotment memos, the petitioners did not report before the 4th respondent. On the other hand, it is the specific case of the petitioners that they reported before the college and due to paucity of time and on account of the bank holiday on 30.9.2010, since they could not obtain bank guarantee, they offered post dated cheques for advance payment of fees and also offered title deeds of their property as security for furnishing bank guarantee. Though these averments made by the petitioners have been denied in the counter affidavit filed by the 4th respondent, in the facts and circumstances of this case, I find it extremely difficult to accept the averments of the counter affidavit and decline relief to the petitioners. This is for the reason that it is too unrealistic, improbable and it is against human conduct to think that a student, who applied and secured admission, downloaded allotment memo, remitted Rs.10.5 lakhs and had gone all the way to Palakkad seeking admission, did not make a last minute attempt to salvage his admission in a Medical College, his WPC.No. 30330/2010 :14 : cherished dream, and did not offer alternate security in lieu of the bank guarantee. Therefore the dispute now raised by the 4th respondent is unbelievable and improbable and I refuse to accept this plea. In my view, having relaxed the very same condition of the prospectus, to the advantage of the 17 chosen students, the 4th respondent acted illegally in having declined the same benefit to the petitioners and denied them admission on the ground that they did not furnish bank guarantee. Such a discriminatory treatment is impermissible and once the condition was relaxed, such benefit should have been given to all similarly situated. In that view of the matter, I am of the opinion that the petitioners ought not to have been denied similar treatment and should have been granted admission extending time for furnishing bank guarantee. 18. Counsel for the 4th respondent contended that the cut off date prescribed by the Apex Court having expired on 30.9.2010, this court should not direct that the petitioners shall be admitted in the College. In the facts of this case, I am not prepared to accept this contention of the 4th respondent for the reason that the petitioners have already remitted Rs.5.5 lakhs WPC.No. 30330/2010 :15 : towards one year fee and also another amount of Rs.5 lakhs towards interest free caution deposit and all that remained was that they were required to furnish bank guarantee. The 4th respondent having relaxed the conditions of the prospectus in favour of the 17 students, I feel that the cut off date which is extended in the case of those 17 students should enure to the benefit of the petitioners also. Added to this is the fact that in so far as the colleges under the 3rd respondent are concerned, the Supreme Court itself has already extended the cut off date of 30.9.2010. Further, the 4th respondent having committed all these illegalities, cannot take shelter under the judgments of the Apex Court and require this Court to uphold their illegalities. For that reason also, I feel that the injustice done to the petitioners should be undone by this court exercising the powers under Article 226 of the Constitution of India. 19. Although much deserves to be said about the conduct of the 4th respondent, for all the illegalities that it has committed, and about the misleading affidavit that was filed before this Court, I refrain myself from making any comments about the same. WPC.No. 30330/2010 :16 : For the aforesaid reasons, the writ petition is allowed and the 4th respondent is directed to admit the petitioners in their college in pursuance to Exts. P4, P5 and P6 allotment memos on condition that the bank guarantee as provided in Ext.P2 prospectus shall be furnished on or before 25.10.2010. (ANTONY DOMINIC) JUDGE vi/