IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 WP(C).No. 26536 of 2008(H) -------------------------- PETITIONER(S): --------------- THE KERALA CHRISTIAN PROFESSIONAL COLLEGE MANAGEMENT FEDERATION, RAJAGIRI VALLEY P.O., KAKKANAD, (REPRESENTED BY ITS CO-ORDINATOR MEDICAL ADMISSIONS), BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): --------------- 1. THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES, REPRESENTED BY ITS MEMEBER SECRETARY, OLD HIGH COURT BUILDINGS, COCHIN -31, 2. K.N. NIZAM, XIII/437, RAHMATH, KARUKAPPADATH HOUSE, VELLATTUMPADAM, THRIKKAKKARA P.O. 682 021 3. ABDUL AZEEZ, KATTAKATH HOUSE, CIVIL LINE ROAD, AYYANTHOLE, TRICHUR 680 003. 4. PAMBA SHIBU, KOTHUPARAMBIL HOUSE, THOPPIL KATTATH ROAD, THIRUVANKULAM P.O., ERNAKULAM 682 305. 5. FILSA MOHAMMED, RAYAMMARAKKAR HOUSE, THALIKKULAM P.O., TRICHUR 680 569 ADV. SRI.S.KRISHNAMOORTHY FOR R2,3,5 SRI.MURALI PURUSHOTHAMAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2008, ALONG WITH WPC NO. 27370 OF 2008, & 26809/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26536 of 2008 APPENDIX EXT.P1- COPY OF LETTER DATED 14.7.08 FROM THE PETITIONER TO THE COMMITTEE EXT.P2- COPY OF PRESS RELEASE DATED 11.8.08 ISSUED BY THE COMMITTEE EXT.P3- COPY OF MINUTE DATED 8.8.08 OF THE MEETING OF THE COMMITTEE EXT.P4- COPY OF SHOW CAUSE NOTICE DATED 11.8.08 ISSUED BY THE COMMITTEE EXT.P5- COPY OF COMPLAINT DATED 11.8.08 OF RKA PRADEEP EXT.P6- COPY OF OBJECTION TO SHOW CAUSE NOTICE DATED 21.8.08 EXT.P7- COPY OF PROCEEDINGS OF THE COMMITTEE DATED 21.8.08 EXT.P8- COPY OF COMMUNICATION DATED 26.8.08 OF THE COMMITTEE EXT.P9- COPY OF COMMUNICATION DATED 26.8.08 FROM THE REGISTRAR OF M.G.UNIVERSITY EXT.P10- COPY OF PETITION DATED 28.8.08 OF THE PETITIONER BEFORE THE COMMITTEE EXT.P11- COPY OF ORDER DATED 28.8.08 OF THE COMMITTEE EXT.P12- COPY OF E MAIL REQUEST DATED 31.7.08 OF FILSA MOHAMMED EXT.P13- COPY OF NOTICE DATED 26.8.08 OF THE COMMITTEE EXT.P14- COPY OF COMPLAINT OF FILSA MOHAMMED TO THE COMMITTEE DATED 23.8.08 EXT.P15- COPY OF OBJECTION DATED 28.8.08 BY THE PETITIONER EXT.P16- COPY OF COMPLAINT DATED 4.8.08 OF PAMBA SHIBU EXT.P17- COPY OF OBJECTION DATED 19.8.08 BY THE PETITIONER EXT.P18- COPY OF REQUEST DATED 29.7.08 OF ABDUL AZIZ TO THE PETITIONER EXT.P19- COPY OF E MAIL DATED 1.8.08 OF ABDUL AZIZ EXT.P20- COPY OF PETITION DATED NIL BEFORE THE COMMITTEE BY ABDUL LATEEF. EXT.P21- COPY OF OBJECTION DATED 19.8.08 FILED BY THE PETITIONER BEFORE THE COMMITTEE WP(C).No. 26536 of 2008 -2- EXT.P22- COPY OF REQUEST DATED 28.7.08 FROM K.N.NIZAM TO THE PETITIONER EXT.P23- COPY OF COMPLAINT DATED 12.8.08 OF K.N.NIZAM TO THE COMMITTEE EXT.P24- COPY OF OBJECTION DATED 26.8.08 OF THE PETITIONER BEFORE THE COMMITTEE (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C)s.26536,26809 & 27370/2008 -------------------- Dated this the 26th day of September, 2008 JUDGMENT Common issues arise for consideration in all these writ petitions. Therefore, they have been heard together and are being disposed of by this common judgment. 2. Since the pleadings are more comprehensive in Writ Petition No.26536/2008, same is taken as the leading case. Petitioner is a Registered Association of most of the Christian Self Financing Professional colleges in the State. This writ petition is essentially concerned with the order passed by the Admission Supervisory Committee for Professional Colleges in so far as it relates to the admission to the MBBS course offered by the four Medical Colleges, which are members of the petitioner Association. 3. Petitioner Federation invited application for admission to the four member Colleges through W.P.(C)s.26536/2008 and Connected cases 2 Website as also through leading newspapers in the State. It has to be noted that the method of determining merit as decided upon by the Association was a combination of marks obtained by the candidate in the CET conducted by the State Entrance Commissioner and the marks in Biology, Physics and Chemistry in the qualifying examinations. Clause 4 Point No. 1 in the prospectus, dealing with the procedure for selection, reads as follows:- Preparation of common Merit list and Allotment of Seats:- Subject to any orders that may be passed by the Courts, admission will be only on the basis of merit by adding marks obtained in the entrance examination conducted by state Commissioner for Entrance Examinations and marks obtained for Physics, Chemistry and Biology/equivalent subjects in the qualifying examination. The marks of the CET and Qualifying examination will be apportioned in the ratio of 50:50. W.P.(C)s.26536/2008 and Connected cases 3 4. The contesting respondents herein applied for the Course. The norms of eligibility prescribed by the Medical Council of India are also applicable. Accordingly, the candidate will have to obtain 50% minimum for CET, in the open quota which is 40% for SC/ST and OBC candidates. The same marks are to be obtained in the qualifying examination as well. 2880 candidates scored more than 50% marks in the Common Entrance Test conducted by the Commissioner. 1386 applications were received by the petitioner Federation and 581 of them were found eligible as per MCI Rules. They were included in the rank list. This included respondents 2 to 5 in the present case also. Apparently, after the closing of the applications, petitioner wrote to the Committee by Ext.P1 letter, explaining the procedure adopted for admission. It seems that the prospectus was also later supplied. There is a dispute as to when the prospectus was supplied. But it may be taken that the prospectus was submitted before the Committee on 5.8.2008. In the meanwhile, an online system of allotment, as contemplated by the prospectus, W.P.(C)s.26536/2008 and Connected cases 4 was gone ahead with by the petitioner. This apparently was keeping in mind the time schedule prescribed by the MCI which provided that classes must be started on 1st of August. 5. Respondents 2 to 5 were also allotted seats. But they were allotted in the second allotment. There is a dispute as to whether they were aware of the allotment but still did not respond within time. Candidates who were allotted under the second allotment had to appear at the concerned college, latest by 5.00 p.m on 26.7.2008. This they did not do. According to them, they did not know that they were allotted seats. Therefore, they were not in a position to respond at the appropriate time. According to the petitioner, the reasons given by them for not appearing at the concerned college were subsequently put forward by the students. In the nature of the directions which I propose to issue in this writ petition, I do not think it is necessary to undertake a detailed appraisal of the rival contentions in this regard. W.P.(C)s.26536/2008 and Connected cases 5 6. Ext.P2 Press release was released on 11.8.2008 by the first respondent Committee to the effect that the admissions undertaken by the petitioner Federation was prima facie illegal and that the Committee proposes to consider the complaints received in this behalf on 14.8.2008. But even before the press release, as evidenced by Ext.P3, Minutes of the meeting held on 8.8.2008, Committee had considered the complaints put in by the contesting respondents and approved a draft show cause notice which was later sent as Ext.P4 on 11.8.2008. A comprehensive objection was given to Ext.P4 as Ext.P6. The allegations in the show cause notice were denied. Apparently the Committee thereafter, met on 21.8.2008 and 28.8.2008. In the meeting held on 21.8.2008, Committee felt that a fact finding enquiry is necessary. Therefore, it appointed a fact finding Commission to enquire into the admission process, till the final allotment to the Course, 2008-09. The said Commission inspected the database maintained in the petitioner's office on 27.8.2008 and thereafter W.P.(C)s.26536/2008 and Connected cases 6 inspected the individual colleges also. According to the petitioner, the fact finding Commission has submitted a final report in this regard. A report of the fact finding enquiry has not been placed on record. Petitioner has a further grievance that notwithstanding an application made by them under the Right to Information Act for the report of the fact finding Commission, same has not been supplied. On 28.8.2008 a hearing was conducted by the Committee. Ext.P10 representation was submitted by the petitioner before the first respondent pointing out that the fact finding Commission was appointed to enquire into the process of admission undertaken by the Federation, that the Commission had come to the registered office of the petitioner at Kalamassery and it's Administrative office at Kakkanad on 27.8.2008. A detailed enquiry was conducted. Commission has to file a report before the Committee. A hearing had to be conducted by the Committee after the Commission files a report. But on 28.8.2008 itself, Ext.P11 order was passed by the Committee. In Ext.P11, the Committee takes note of the fact that the fact finding W.P.(C)s.26536/2008 and Connected cases 7 Commission has submitted a report, but verification of the same will take time. A report from the fact finding Commission is yet to be received. But on the premise that remedial measures had to be taken by the Committee, it proceeded to pass an order directing the petitioner Federation and the concerned individual managements to admit respondents 2 to 5 herein for the MBBS Course, 2008-09, provisionally, pending final decision by the Committee. It is Ext.P11 order which has been challenged in the writ petition. Even thereafter the Committee proposed to proceed with the enquiry into the admission process which was undertaken by the petitioner Federation. 7. The concerned students who are beneficiaries of Ext.P11 have filed Writ Petition No.26809/2008. Certain other students, who have filed complaints before the Committee, but in relation to whom there is no order directing their admission as such, have independently filed Writ Petition No.27370/2008. Due to constraints of time, it was agreed that the pleadings by the petitioner in W.P.(C)s.26536/2008 and Connected cases 8 Writ Petition No.26536/2008 shall be treated as counter affidavit in Writ Petition No.26809/2008 and vice versa. 8. I heard learned senior counsel for the petitioner Mr.Kurian George Kannamthanam and Mr.Krishnamoorthy for the respondents and Mr.Murali Purushothaman for the Admission Supervisory Committee. Mr.Murali Purushothaman appeared for the Committee and a statement has been filed by the Committee in W.P.(C).26536/2008 as directed by this Court. 9. First issue to be considered is whether Ext.P11 order is sustainable or not. Mr.Kannamthanam submits that the powers of the Committee, truncated as it were is confined to Section 4 of Act 19 of 2006. Sub section (6) and sub section (7) of the Act are extracted herein:- 4 (6).The admission supervisory Committee shall supervise and guide the entire process of admission of students to the unaided professional colleges or institutions with a W.P.(C)s.26536/2008 and Connected cases 9 view to ensure that the process is fair, transparent, merit-based and non exploitative under the provisions of this Act. 4 (7).The Admission Supervisory Committee may hear complaints with regard to admission in contravention of the provisions contained herein. If the Admission Supervisory Committee after enquiry finds that there has been any violation of the provisions for admission on the part of the unaided professional colleges or institutions, it shall make appropriate recommendation to the Government for imposing a fine upto Rupees Ten Lakhs and the Government may on receipt of such recommendation, fix the fine and collect the same in the case of each such violation or any other course of action as it deems fit and the amount fixed together with interest thereon shall be recovered as if it were and arrear of public revenue due on land. The Admission Supervisory Committee may also declare admission made in respect of any or all seats in a particular college or institution to be de hors merit and therefore invalid communicate the same to the concerned University. On the receipt of such communication, the University shall debar such candidates from appearing for any W.P.(C)s.26536/2008 and Connected cases 10 further examination and cancel the results of examinations already appeared for. 10. Learned senior counsel submits that going by Ext.P11, there is no finding by the Committee that any provision in the Act has been contravened in the matter of admissions carried out by the petitioner during the current year. He further submits that at any rate, order directing four students to be admitted is without jurisdiction. No such power is vouchsafed in favour of the Committee under the Act. They have only powers of recommendation. 11. Mr.Krishnamoorthy submits that going by Section 4(6), Committee is entitled to supervise the entire process of admission to ensure that the process is fair, transparent, merit-based and non exploitative. 12. I am of the view that the process undertaken by the petitioner in the present case was transparent.They had issued a prospectus and prospectus was published in the website as well.In fact,respondents herein had also W.P.(C)s.26536/2008 and Connected cases 11 participated and I take note of the fact that they were included in the rank list and they had no objection as regards their inclusion in the rank list or their ranking in the list as such. In other words, there cannot be an allegation that the process undertaken by the petitioner is not fair. Adoption of a criteria based on an aggregate of the marks obtained by the candidate in the core subjects of the qualifying examination namely Physics, Chemistry and Biology and the marks obtained in the CET conducted by the State, in my view, is a thoroughly fair criterion as such. It is obviously merit-based and there are good reasons to observe that the said criteria would be more rational than the marks obtained in the Common Entrance Test or in the qualifying examination alone as the case may be. An amalgamation of the two would ensure that the comprehensive merit of the candidate would form the basis for the selection. I do not find any serious allegation that the process undertaken by the petitioner in the present case is exploitative. After all, petitioners themselves were included in the rank list and they were included in the W.P.(C)s.26536/2008 and Connected cases 12 second allotment order also. The contention raised by Mr.Kannamthanam is that even if Section 4(7) of the Act enables the Committee to exercise the powers as mentioned therein, which are recommendatory in character, it obviously will not enable the Committee to pass an order of the instant nature directing admissions to be made. I am inclined to accept this submission. The Powers of the Committee are cribbed, cabined and confined by the provisions of the Act. The Act does not vouchsafe to the Committee the power to pass an order directing any management to admit any student. The Committee does not have any residuary powers under the Act. It has no powers to direct the Management to admit any appropriate student as such. It can recommend that any admission be cancelled. But going by sub section (7) of Section 4 of the Act, it is clear that the power of the Committee to declare any admission made in respect of any or all seats in a particular college as “de hors merit” and therefore invalid should be preceded by a detailed enquiry. But even such powers will not take in the powers to direct W.P.(C)s.26536/2008 and Connected cases 13 the admission of any student. Therefore, I am of the view that direction in Ext.P11 to admit respondents 2 to 5 is without jurisdiction. Accordingly such direction is liable to be set aside by this Court. I do so. 13. Mr.Krishnamurthy submits that even de hors Ext.P11 order, this Court may consider whether the contesting respondents are otherwise eligible to be admitted in any of the colleges which are constituents of the petitioner Federation. That the students were found to be eligible to be admitted is not denied by the Federation. In fact the students were included in the rank list. I take note of the fact that the candidates with lower rank than respondents 2 to 5, have actually been allotted seats by the petitioner Federation and that the students may not actually be found fault with either for not responding to the second allotment effected by the Federation or allegedly for not taking steps to be present at the concerned college within the time stipulated. In these circumstances, I made a suggestion to Mr.Kannaamthanam, the learned senior counsel, W.P.(C)s.26536/2008 and Connected cases 14 whether the petitioner Federation will admit the four students who are the beneficiaries of Ext.P11 order, notwithstanding the illegality of Ext.P11 because after all, those students were found to be eligible by the Federation itself. Mr.Kannamthanam graciously accepted and consented that these four students would be offered admission provided they remit fee as now stipulated by the Management in the prospectus (subject to a final decision on the quantum which the petitioner can collect and which issue is currently pending before this Court). In these circumstances, Mr.Kannamthanam also submitted that the proceedings before the Committee which were initiated at the instance of the respondents in this case may stand terminated. 14. I take note of this fair submission and I also take note of the fact that the last date for admission of any student in the MBBS course commencing 2008, going by the MCI norms and approved by the Apex Court is 30.9.2008. In other words, no admission can be effected after the said date. In consonance with the observations W.P.(C)s.26536/2008 and Connected cases 15 which I have made above, particularly the parameters which have been adopted by the petitioner Federation for regulating admission for the MBBS Course during the current year, which seem to be fair, transparent, merit- based and non exploitative, I am of the view that in the larger interest of the public and the students who have already been admitted in the petitioner Federation, there should be a quietus to proceedings currently pending before the Admission Supervisory Committee as regards the admissions effected. Mr.Murali Purushothaman brought to my notice that there are certain complaints by certain OBC candidates as regards the admission effected by the petitioner Federation for the year 2008-09 and proceedings have been initiated by the Committee on the basis of said complaints and there is even a Writ Petition at the instance of the Federation now pending before this Court. Taking note of the fact that there is a deadline as regards the admission to the Medical Course on 30.9.2008 and taking note of the fair stand by the petitioner Federation that notwithstanding the illegality of Ext.P11 order, they will offer admission W.P.(C)s.26536/2008 and Connected cases 16 to the four students who are beneficiaries of the said order, I am of the view that consistent with the scope and ambit of Section 4(6) and 4(7) as has been held above, the Committee should not proceed further with regard to the medical admission for the year 2008- 09 to the four constituent colleges of the petitioner Federation, in so far as such proceedings are based on the complaints lodged by any student claiming admission in any of the four colleges which are constituents of the petitioner. This is to ensure that there is a certainty as regards the admission to the Colleges. I make it clear that the interdiction as mentioned above will not comprehend any steps which the Admission Supervisory Committee may take for effecting appropriate recommendations to the Government as contemplated by Section 4(7) of the Act. 15. In the above view of the matter, respondents 2 to 5 in Writ Petition No.26536/2008 shall be offered admission by the petitioner Federation in any one of the four constituent colleges for the MBBS Course, 2008-09. W.P.(C)s.26536/2008 and Connected cases 17 Intimation in this regard shall be put in the website of the petitioner Federation at the earliest, latest by 2.00 pm on 27.9.2008. Such among respondents 2 to 5, who are interested in accepting the offer of the petitioner Federation, shall report to the respective colleges on or before 1.00 pm on 29.9.2008 along with the requisite demand draft for effecting payment of the fee as stipulated in the prospectus. In the circumstances, petitioner Federation may proceed to fill up the remaining seats from Ext.P27 list produced along with the writ petition. The payment of the fees by the candidates who accept the offer by the petitioner Federation will be subject to final adjudication regarding the quantum of the fee that can be levied by the Management. Writ petitions are disposed of as above. V.GIRI, Judge mrcs