IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 WP(C).No. 22084 of 2010(I) ------------------------------------- PETITIONER(S): ------------------------- NOORBINA BANU.K., D/O.ASSAIN.K, CHANDAPARAMPA HOUSE, POOVATTUPARAMBA P.O KOZHIKODE DISTRICT. BY ADVS. SRI.K.M.FIROZ SRI.SUJITH MATHEW JOSE RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 01. 2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE MEDICAL COUNCIL OF INDIA, POCKET 14, SECTOR - 8, DWARAKA PHASE - 1, NEW DELHI, REPRESENTED BY ITS SECRETARY. 4. THE ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES, RAM MOHAN PALACE, ROOM NO.8, ERNAKULAM, COCHIN - 682 031, REPRESENTED BY ITS MEMBER SECRETARY. 5. THE KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT ASSOCIATION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, INTERNATIONAL STUDENTS CENTRE, LMS COMPOUND, THIRUVANANTHAPURAM, PIN - 695 033. R1 & R2 BY GOVT. PLEADER SRI.T.B.HOOD R3 BY ADVS. SRI.ALEXANDER THOMAS, SC, MCI R4 BY SRI.MURALI PURUSHOTHAMAN R5 BY SRI.ANIL K.NARENDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2010, ALONG WITH WPC NO. 23320 OF 2010 WPC NO. 23373 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 22084/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MARKS / DATA SHEET. P2:- COPY OF THE MARK SHEET/ CERTIFICATE DTD. 12.5.2009. P3:- COPY OF THE ORDER DTD. 12.7.2010 SLP.(C) NO.19247/2008. RESPONDENT'S EXHIBITS R5(a):- COPY OF THE PROSPECTUS DTD. 29.4.2010 ISSUED BY THE CONTROLLER OF EXAMINATIONS APPOINTED BY THE 5TH RESPONDENT. R5(b):- COPY OF THE NOTIFICATION DTD. 29.4.2010 PUBLISHED IN HINDU, DESABHIMANI AND KERALA KAUMUDI DAILIES DTD. 30.4.2010. R5(c):- COPY OF THE NOTIFICATION DT. 4.5.2010 PUBLISHED IN DESABHIMANI AND KERALA KAUMUDI DAILIES DTD. 16.5.2010. R5(d):- COPY OF THE FORMAT OF THE ADMIT CARD DTD. NIL ISSUED BY THE CONTROLLER OF EXAMINATIONS TO THE APPLICANTS. R5(e):- COPY OF THE INDIAN MEDICAL COUNCIL (AMENDMENT) ORDINANCE 2010, PUBLISHED IN THE GAZETTE OF INDIA DTD. 15.5.2010. R5(f):- COPY OF THE PUBLIC NOTICE DTD. NIL RELEASED BY THE BOARD OF GOVERNORS OF THE MCI. R5(g):- COPY OF THE EXTRACT OF THE MINUTES OF THE MEETING OF THE 4TH RESPONDENT COMMITTEE HELD ON 17.6.2010. R5(h):- COPY OF THE ORDER DTD. 13.8.2008 IN SLP. (CICIL) NO.19247/08. R5(i):- COPY OF THE ORDER DTD. 25.8.2008 IN SLP. (CIVIL) 19936/08. R5(j):- COPY OF THE APPLICATION DTD. NIL FILED FOR MODIFICATION OF ORDER DTD. 25.8.08 IN SLP (CIVIL) NO.19936/08. R5(k):- COPY OF THE ORDER DTD. 13.5.2010 IN IA. NO.2 IN SLP. (CIVIL) NOL 19936/2008. ANNEXURE A:- COPY OF THE LETTER NO.ASC 291/10 DTD. 5.5.2010 OF THE 4TH RESPONDENT ADDRESSED TO THE 5TH RESPONDENT. ANNEXURE B:- COPY OF THE LETTER NO.ASC 291/10 DTD. 7.5.2010 OF THIS RESPONDENT. ANNEXURE C:- COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE DTD. 10.5.2010. W.P.(C) NO.22084/2010 ANNEXURE D:- COPY OF THE LETTER NO.ASC 291/10 DTD. 14.5.2010. ANNEXURE E:- COPY OF THE LETTER NO.ASC 291/10 DTD. 21.5.2010. ANNEXURE F:- COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE DTD. 25.5.2010. ANNEXURE G:- COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE DTD. 2.6.2010. ANNEXURE H:- COPY OF THE REPORT DTD. 7.6.2010 SUBMITTED BY THE CONTROLLER OF EXAMINATION OF THE 5TH RESPONDENT BEFORE THE COMMITTEE. ANNEXURE I:- COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE DTD. 17.5.2010. ANNEXURE J:- COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE DTD. 8.7.2010. ANNEXURE K:- COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE DTD. 20.7.2010. TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 22084, 23320 & 23373 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= Dated this, the 2nd day of August, 2010. J U D G M E N T Since these three writ petitions canvass the same issue, they are being heard and disposed of together by this common judgment. Ranks of parties, pleadings and Exhibits are referred to in this judgment are as obtaining in W.P(C) No. 22084/2010, unless otherwise made clear. 2. The Supreme Court of India started two judgments relating to admissions to professional colleges in the country with a quotation from Shakespere's 'Othello'. The first judgment was in 1995, viz. Convenor, MBBS/BDS Selection Board v. Chandan Mishra, 1995 Suppl. (3) SCC 77. That quotation was extracted by the Supreme Court again in the decision of Medical Council of India v. Madhu Singh and others, 2002(7) SCC 258. I quote here the first paragraph of the 2nd judgment, which reads thus: “This appeal filed by the Medical Council of India (in short “MCI:) raises important questions regarding desirability of belated admissions to medical colleges in different courses, both pregraduate and postgraduate. The questions assume importance because filing a large number of petitions before various High Courts and this Court has become an annual feature. When the time of admission to medical courses arrives, immediately comes to mind Shakespeare's Othello, where it was written: “Chaos is come again”. The inevitable result is that considerable time is lost by candidates chasing vires instead of virus. This Court in Convenor, MBBS/BDS Selection Board v. Chandan Mishra, 1995 Supp (3) SCC 77 observed as follows: (SCC p. 78, para 6) W.P.C. No. 22084/10 etc. -: 2 :- “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 came . . . . '.” The factual position leading to the appeal, which is almost undisputed,needs to be noted in some detail.” It is distressing to note that even after 15 years, the situation remains the same. Alas, in spite of the Supreme Court beseeching the Central Government and the State Governments in P.A. Inamdar v. State of Maharashtra, 2005(6) SCC 537, to come out with a detailed, well thought out legislation on the subject, which is long awaited , the Central Government has not yet found it necessary to do anything in that regard. Although the State of Kerala has attempted one, namely, Act 19 of 2006, it has turned out to be a flop, since the major provisions thereof have been declared as unconstitutional by a Division Bench of this Court in Lisie Medical & Educational Institutions v. State of Kerala, 2007 (1) KLT 409. Come June, every year and this year also, the admission process in the professional colleges, particularly, medical colleges in the State, is “chaos is come again.”. These writ petitions are part of that chaos contributed by some self-financing medical colleges in the State of Kerala. 3. Although, the State Government started its admission process for admission to professional colleges in Kerala as early as in December, 2009, the consortium of medical colleges whose members have entered into seat sharing agreements with the State Government and whose admission procedure for management seats is under challenge in these writ petitions, found it sufficient to start it only as late as on 29-4-2010 by issuing a prospectus, which is produced as W.P.C. No. 22084/10 etc. -: 3 :- Ext. R5(a) along with the counter affidavit filed by them. Based on the same, on the very same day, an advertisement was issued in two Malayalam and one English news papers, inviting applications for admission to the member colleges of the consortium. 1046 students are started to have responded to the notification inviting applications. A common entrance examination was conducted on 30-5-2010, in which only 751 of them participated. A rank list was published on 20- 7-2010 and admissions have been made. That admission procedure is under challenge in these writ petitions. 4. The petitioners raise several contentions against the said admission procedure adopted by the consortium. Some of those contentions are common to the 2008 admission also, which was the subject matter of a judgment of mine, which is reported as Fathimma Haseena P. v. State of Kerala and others, 2008(3) KHC 544. But, that judgment was challenged by the 5th respondent before the Supreme Court and the Supreme Court had granted a stay. But, on 12-7-2010, the Supreme Court disposed of that SLP by the following order: “In these matters the dispute relates to the admission of students into medical college for the academic year 2008. In view of the interim order passed by this Court , there is no need for any adjudication and no further orders are required to be passed on these Special Leave Petitions. The Special Leave Petitions are accordingly dismissed.” Going by that order, on dismissal of the SLP, the judgment stands confirmed. Of course, the learned counsel for the 5th respondent would contend that a clarification petition was filed before the Supreme Court, namely, Ext. R5(h) produced in W.P(C) No. 23373/2010, which is pending. 5. The petitioners raise several contentions against the admission procedure adopted by the 5th respondent. According to W.P.C. No. 22084/10 etc. -: 4 :- them, the procedure adopted by the 5th respondent is not fair, transparent and non-exploitative, as it ought to have been as laid down by the Supreme Court in P.A. Inamdar' case (supra). The reasons stated by them in support of their contention are as follows: (a) The first is that the Supreme Court has repeatedly held that it is mandatory for the Government and the other institutions making admission to medical colleges to conform to the time schedule prescribed by the Medical Council of India in respect of various stages of the admission process. They would contend that the results of the entrance examination was not published by 15th June this year, which is one of the schedules fixed by the Supreme Court as well as the Medical Council of India. According to them, as laid down by the Supreme Court in Medical Council of India v. Manas Ranjan Behera and others, (2010) 1 SCC 173, even the High Court cannot grant extension of time to comply with the time schedule fixed by the Supreme Court of India. (b) The second contention is that the consortium, while conducting the entrance test as common for ten medical colleges, fixed different minimum percentage of marks in the qualifying examination, for admission to the individual member colleges, which was found to be invalid by this Court in Fathimma Haseena's case (supra), which has now been upheld by the Supreme Court by dismissing the Special Leave Petition. Therefore, on that ground, the entrance test conducted on the basis of such an admission procedure is clearly unsustainable, is the contention. (c) The next contention is that a Division Bench of this Court has in Lisie Medical & Educational Institutions' case (supra) , specifically held that in view of Section 4 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation or Non-Exploitative Fee and other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006, W.P.C. No. 22084/10 etc. -: 5 :- (Act 19 of 2006), the entire admission procedure of self-financing educational institutions shall be supervised by the admission supervisory committee constituted under Section 4 of the said Act, which has not been done in this case, as a result of which the admission procedure is vitiated. (d) They would also contend that in Fathima Haseena's case, this Court has laid down guidelines for the procedure to be adopted by unaided medical colleges, who opt to conduct their own entrance test by selection of students for admission, which have not been complied with by the 5th respondent consortium of medical colleges. 6. A counter affidavit has been filed by the 5th respondent seeking to refute the contentions of the petitioners. According to them, the entire admission procedure has been fair, transparent and non-exploitative. They take the stand that the prospectus issued by them was placed before the Admission Supervisory Committee. They have also taken the assistance of the Admission Supervisory Committee in the matter of conducting the entrance test, is their submission. Therefore, they have strictly complied with the requirement of Section 4 of Act 19 of 2006, is their contention. 7. While admitting that they have not declared the results of the entrance test until 20-7-2010, they would contend that the same is only because the Admission Supervisory Committee had restrained them from publishing the results, which cannot be held against them. 8. Regarding the contention on the basis of different minimum percentage of marks for the qualifying examination for different member colleges of the consortium, the 5th respondent would contend that it is perfectly competent for them to fix a higher percentage of minimum marks for the qualifying examination insofar as there is no prohibition in respect of the same in any legislation or any decision. They would particularly rely on a decision of the Madras High Court, viz, Miss A. Karthiga v. The Secretary and others, 2007 KHC W.P.C. No. 22084/10 etc. -: 6 :- 3467, wherein a learned Single Judge of the Madras High Court had upheld the autonomy of the private unaided professional institutions to fix a higher minimum marks to be obtained in the qualifying examination in order to become eligible to write the common entrance test. 9. On the issue of non-compliance with the directions in Fathimma Haseena's case supra, they would contend that since that judgment was under stay by the Supreme Court of India till 12- 7-2010, they were not bound to comply with the directions therein. They would further contend that Fathimma Haseena herself had filed a petition for modification of the interim order, which was posted along with the SLP without passing any orders thereon. They would also raise a contention that a clarification petition filed by them is also pending before the Supreme Court at present. 10. The Admission Supervisory Committee has filed a statement, in which they have detailed the steps taken by the consortium in the matter of selecting the Admission Supervisory Committee, which, although does not state so in so many words, would tend to show that the 5th respondent had not complied with the requirement of Section 4 of Act 19 of 2006. 11. I have considered the rival contentions in detail. 12. The first question to be considered is whether the 5th respondent had complied with the time schedule prescribed by the Supreme Court of India and the Medical Council of India. Admittedly, the entrance test was conducted on 30-5-2010 and the results were published only on 20-7-2010. The Admission Supervisory Committee granted permission to publish the results only on 20-7-2010. On this question, the issue is covered by the decision of the Supreme Court of India in Mridul Dhar and another v. Union of India and others, 2005(2) SCC 65 and Medical Council of India v. Manas Ranjan W.P.C. No. 22084/10 etc. -: 7 :- Behera and others, (2010) 1 SCC 173. Those decisions read together would go to show that the time schedule for various stages of the entrance examination for MBBS admission in the country are mandatorily to be complied with by every medical college in the State, whether Government, aided or private self-financing. In fact, I had considered that question in Fathimma Haseens's case, wherein, after extracting paragraphs 8 to 12 of Mridul Dhar's case, I had held thus: “xx xx xx The above would go to show that the Supreme Court issued those directions as having general applicability for all situations and not only in the context of safeguarding interests of students seeking admission in the All India quota alone. As far as the reliance by the counsel for the 5th respondent in Madhu Singh's case (supra) is concerned, suffice to say that even if it supports the case of respondents 5 and 6, which itself is not conclusive, the same being an earlier decision of a bench of lesser strength, the later decision in Mridul Dhar's case, by a larger bench, would no doubt prevail over the same. 11. I am of opinion that adherence to such a time schedule itself would go a long way in ensuring a fair, transparent and non- exploitative admission procedure. If all entrance examinations for admission to various medical colleges in the State for the same year are completed simultaneously, the chances of manipulations in admission by unscrupulous managements can be reduced to the minimum. Unaided managements will not get the opportunity to doctor their rank list after knowing about the rank list published by the Commissioner of Entrance Examinations. Simultaneous completion of admission process at all levels in all medical colleges in the State would ensure fairness, transparency and non- exploitation in admissions in unaided medical colleges also to the maximum, which is what the Supreme Court repeatedly called for in all their decisions on the subject. 12. In any event, since the Medical Council of India has incorporated the time schedule in the Graduate Medical Education Regulations, the time schedule has attained statutory character. That time schedule can be changed only by the Supreme Court of India which the Supreme Court has occasionally done for very compelling reasons. Respondents 5 and 6 or the colleges, not having chosen to approach the Supreme Court for conducting the test beyond the time prescribed in the schedule so fixed, they cannot now admit students on the basis of a rank list prepared in that test, which has not been conducted in accordance with the time schedule. W.P.C. No. 22084/10 etc. -: 8 :- 3. The 5th respondent admits that they are bound by the last date fixed for completing all admissions viz. 30-9-2008. That date has no relevance to admissions in the All India Quota in so far as admissions to All India Quota has to be completed on or before 22nd August as per the time schedule prescribed. Therefore, their contention that the schedule is fixed only in the context of admission to All India quota has no legs to stand.” In view of that conclusion, neither the Admission Supervisory Committee nor this Court can direct that the time schedule fixed by the Supreme Court and the Medical Council of India need not be adhered to. From the statement of the Admission Supervisory committee, I find that they were forced to direct so in view of the consistent default on the part of the respondent to answer the queries put by the Committee and to appear before the Committee. Even otherwise, whatever be the reason, it remains a fact that the 5th respondent consortium has not published the results of the examination on or before 15th June, which is the time schedule fixed by the Supreme Court of India and the Medical Council of India. The results of the Common Entrance Test conducted by the Commissioner of Entrance Examinations had already been published in May. As such, the entrance test conducted by the consortium is open for allegations of doctoring of rank list insofar as the rank list of other students who wrote the Common Entrance Test conducted by the Commissioner of Entrance Examinations of the Government has already been published. Therefore, the test conducted by the 5th respondent would not pass the test of transparency. In fact, although discussed first, that is only one of the minor infirmities in the entrance test conducted by the consortium. The major infirmities are discussed below. 13. The next question is whether as laid down by the Division Bench of this Court in Lisie Medical & Educational Institutions' case (supra), the 5th respondent had complied with the provisions of Section 4 of Act 19/2006. The necessity to comply with the W.P.C. No. 22084/10 etc. -: 9 :- provisions of that Section has also been considered by me in Fathimma Haseens's case. In paragraph 38 of the Division Bench decision in Lisie Medical & Educational Institution's case, it was held thus: “38. From the discussion made above, it has to be held that the unaided minority or non-minority institutions have a fundamental right enshrined under Arts. 19(1)(g) and 30(1) of the Constitution of India to run educational institutions. The minority institutions have an additional right which may be called as even a protection to establish and administer the institutions of their choice. The admissions can be regulated by legislation, but such legislation can only and surely be for ensuring the triple test of fair, transparent and non-exploitive procedure in the matter of admission. The State has indeed taken adequate measures in the impugned Act itself that the admissions may be merit oriented. The provisions do adequately take care of a test which may ensure the triple test. The Admission Supervisory Committee has been constituted as per S.4. It consists of a retired Judge of the Supreme Court or High Court as Chairperson; Secretary to Government, Higher Education Depart is to be Member Secretary; whereas Secretary to Government, Health and Family Welfare Department, Secretary to Government, Law Department, The Commissioner for Entrance Examinations, Kerala, and an educational expert belonging to Scheduled Caste or Scheduled Tribe Community are to be Members of the Committee. By virtue of provisions of sub- section (6) of S.4, the Admission Supervisory committee shall supervise and guide the entire process of admission of students to the unaided professional colleges or institutions with a view to ensure that the process is fair, transparent, merit-based and non-exploitative under the provisions of the Act. The Admission Supervisory Committee in view of sub-section (7) of S. 4 has the right to hear complaints with regard to admission in contravention of the provisions of the Act and if it may find violation of the provisions it could make appropriate recommendation to the Government for imposing a fine up to Rupees Ten Lakhs. The Committee has also the right to declare admissions made in respect of any or all seats in a particular college or institution to be de hors merit and therefore invalid and communicate the same to the concerned University. On receipt of such communication, the University shall debar such candidates from appearing from any further examination and cancel the results of examinations already appeared for. The Committee can also recommend to the University or statutory body for withdrawal of affiliation or recognition of such college or institution or take any other action which it may deem fit. The provisions contained in sub-ss (6) and (7) of S. 4 of the Act provide foolproof procedure from the beginning of the test up to its end which would ensure that the process is fair, transparent and non-exploitative. This is the only right of the State. Having done so, there was no need for the State to frame S. 3 arrogating to itself the complete right of admission and the procedure thereof. This is nationalisation of education and is wholly impermissible. Further, if by virtue of the provisions contained in S. 3 W.P.C. No. 22084/10 etc. -: 10 :- of the Act dealing with the method of admission in professional colleges or institutions, the admissions are now to be regulated or made through the common entrance test conducted by the State only followed by centralised counselling through the single window system by the Commissioner for Entrance Examinations, what was the requirement of making the provision such as subsections (6) and (7) of S. 4. Surely, it cannot be case of the State that the procedure followed by it may be defective or lacking the triple test.” (Emphasis supplied) Section 4 of Act 19 of 2006 reads thus: “4. Admission Supervisory Committee:- (1) The Government shall constitute an Admission Supervisory Committee to supervise the guide the process of admission of students to unaided professional colleges or institutions consisting of the following members, namely.-- (i) A retired Judge of the Supreme Court or a High Court. Chairperson (ii) The secretary to Government, Higher Member Education Department (ex-officio) Secretary (iii) The Secretary to Government, Health and Family Welfare Department (ex-officio) Member (iv) The Secretary to Government, Law Department (ex-officio) Member (v)