IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 22499 of 2008(C) -------------------------- PETITIONER: ------------ FATHIMMA HANEENA.P., D/O.P.ASHRAF, 19 YEARS, THEERAM, KARANTHOOR PO., KOZHIKODE. BY ADV. SRI.GEORGE POONTHOTTAM SRI.K.M.FIROZ SRI.M.P.SHYJAL RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY THE SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 2. COMMISSIONER FOR ENTRANCE EXAMINATIONS HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 3. MEDICAL COUNCIL OF INDIA, POCKET 14, SECTOR-8, DWARAKA PHASE-1, NEW DELHI, REP. BY ITS SECRETARY. 4. ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLEGES RAM MOHAN PALACE, ROOM.NO.8, ERNAKULAM, REP. BY ITS MEMBER SECRETARY 5. KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT ASSOCIATION, THIRUVANANTHPURAM REP. BY ITS SECRETARY SAJAN PRASAD INTERNATIONAL STUDENTS CENTRE, LMS COMPOUND THIRUVANANTHAPURAM 695033. 6. THE CONTROLLER OF EXAMINATIONS, THE KERALA PRIVATE MEDICAL COLLEGE MANAGEMENT ASSOCIATION, INTERNATIONAL STUDENTS CENTRE, LMS COMPOUND, THIRUVANANTHAPURAM, PIN – 695 033. BY ADV. SRI.ALEXANDER THOMAS, SC, MCI FOR R3 SMT.V.P.SEEMANDINI (SR.) FOR R6 SRI.V.VIJULAL FOR R6 SRI.O.V.RADHAKRISHNAN (SR.) FOR R5 SRI.R.T.PRADEEP FOR R5 SRI. MURALI PURUSHOTHAMAN GOVT. PLEADER SMT. N. SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT, ON 05/08/2008, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 22499/2008. -------------------------------------------------------------------- EXT.P1 TRUE COPY OF GOVERNMENT ORDER DATED 28-6-2008. EXT.P2 IMPLEADING FILED BY R5 IN W.P.C.NO. 21155/2008. EXT.P3 PRESS RELEASE DT. 24-3-2007. EXT.P4 PROSPECTUS TO MBBS, 2008-2009. EXT.P5 ADVERTISEMENT GIVEN IN MALAYALA MANORAMA DAILY DT. 8-7-2008. EXT.P6 ADVERTISEMENT GIVEN IN MALAYALA MANORAMA DAILY DT. 18-7-2008. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R5(a) PHOTOCOPY OF NOTIFICATION DT. 5-7-2008. EXT.R5(b) CONSENSUAL AGREEMENT DT. 17-6-2008. EXT.R5(c) ORDER DT. 27-6-2008. EXT.R5(d) ORDER DATED 8-7-2008. EXT.R5(e) ORDER DATED 15-7-2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 22499 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 5th August, 2008. J U D G M E N T The petitioner is a student who aspires for admission to medical colleges in Kerala during this year. She has appeared in the Common Entrance Test conducted by the Commissioner of Entrance Examinations of the Government of Kerala and is included as rank no. 1503 in the rank list prepared pursuant thereto. As is common knowledge, there are several Self-financing Medical Colleges in Kerala, the mode of admission to which is in a nebulous state for the past few years because of the dispute regarding seat sharing between the Government and the Managements of the Self-financing Medical Colleges. Six of the Self-Financing Medical Colleges in Kerala entered into Ext. P1 agreement with the Government regarding seat sharing with a fee pattern in excess of what has been fixed by the Fee Regulatory Committee appointed by the Government of Kerala under Section 6 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 (hereinafter referred to as Act 19 of 2006). The legality and validity of that agreement is under challenge before this Court in W.P(C) No. 21155/2008 filed by the petitioner herself. In that writ petition, an interim order has been passed directing that in the 35% management seats to be filled up as per the said agreement, pending approval of the agreement by the Supreme Court, for which approval the Government has already approached the Supreme Court, fees shall be collected only as per the fees prescribed by the Fee Regulatory Committee. Originally, for this year, the six medical colleges had decided to make admission to the management quota seats also from the rank list prepared and W.P.C. No. 22499/2008 -: 2 :- published by the Commissioner of Entrance Examinations in the Common Entrance Test conducted by the Government of Kerala. However, the 5th respondent through the 6th respondent, by a notification dated 5-7-2008 published in two Malayalam daily newspapers namely, 'the Kerala Kaumudi' and 'the Desabhimani', invited applications for admission to MBBS course in the six medical colleges mentioned above. Along with the application form, the prospectus for admission was to be issued. A copy of the prospectus for the admission is produced by the petitioner as Ext. P4 in the writ petition. As per the same, the selection for admission was to be made on the basis of marks obtained by the candidate for Physics, Chemistry and Biology in the qualifying examination and marks obtained in the entrance examination conducted by the 5th respondent Association apportioned in the ratio 50:50. In accordance with the prospectus, the respondents 5 and 6 have directed the candidates to appear for an entrance examination to be conducted on 27-7-2008. The validity of that examination is under challenge before me in this writ petition filed on 24-7-2008, on two grounds, viz. (1) the same is against the schedule prescribed as per the Medical Council of India Regulations as approved by Supreme Court of India in Mridul Dhar & another v. Union of India and others [(2005) 2 SCC 65] and (2) the test so proposed does not satisfy the triple tests of being fair, transparent and non-exploitative as laid down by the Supreme Court in P.A. Inamdar v. State of Maharashtra, [(2005)6 SCC 537]. 2. The petitioner contends that the Medical Council of India has, as early as on 25-2-2004, framed the Graduate Medical Education (Amendment) Regulations, 2004 laying down the time schedule for completion of admission process for first MBBS course in Appendix E thereof. This time schedule has been approved by the Supreme Court W.P.C. No. 22499/2008 -: 3 :- of India in Mridul Dhar's case (supra) and the Supreme Court has directed all concerned to strictly adhere to the time schedule so prescribed making it the responsibility of all concerned including the Chief Secretaries and Health Secretaries of each State/Union Territory to ensure compliance with the said direction. The petitioner points out that as per that time schedule, the entrance examination for filling up seats to be filled up by the State Governments/Institutions has to be conducted in the month of May each year and the results thereof have to be published by 15th of June. The first round of counselling/admission has to be over by 25th July. According to to the petitioner, the entrance test slated for 27-7-2008 by respondents 5 and 6 is in violation of the time schedule approved by the Supreme Court of India and therefore no admission can be made based on a rank list prepared pursuant to the said entrance test. The petitioner would contend that the only other alternative available for the six medical colleges for this year is to make admissions from the rank list prepared by the Commissioner for Entrance Examinations of the Government of Kerala in accordance with the inter se merit of candidates therein. 3. Secondly, the petitioner contends that the entrance test conducted by respondents 5 and 6 does not satisfy the triple tests of being fair, transparent and non-exploitative. According to her, the 6th respondent has invited applications for admission by notification in only two Malayalam dailies named 'Kerala Kaumudi' and 'Desabhimani', which cannot be said to be papers having wide circulation all over Kerala. The Malayala Manorama, Mathrubhumi, Indian Express and the Hindu are having much wider circulation throughout Kerala in which the notification has not been published. The notification is published on 5-7-2008 fixing the last date for W.P.C. No. 22499/2008 -: 4 :- submitting applications as 15-7-2008. The notification does not mention as to the mode of conducting selection, not even that the applicants have to undergo a common entrance test. The notification prescribes different minimum qualifying marks in the qualifying examination for admission to the six different medical colleges, but the entrance test is common. It is only in the prospectus that the mode of selection is prescribed. Therein, the candidate is given liberty to choose only a maximum of three of the six colleges, to which colleges only the candidate would be considered for admission. She further submits that the admission procedure has not been supervised by the Admission Supervisory Committee appointed by the Government under Act 19 of 2006. According to the petitioner, as per the said Act, it is mandatory that the process of admission of students to unaided professional colleges or institutions have to be supervised by the Admission Supervisory Committee appointed under Section 4 of Act 19 of 2006. She submits that the Justice P.A. Mohammed Committee appointed as the Admission Supervisory Committee under the said Act has not been involved in the conduct of the test as was done last year as is evident from Ext. P3. This alone, according to the petitioner, would be sufficient to declare the test conducted by respondents 5 and 6 as invalid. The petitioner also refers to Exts. P5 and P6 advertisements dated 8-7-2008 and 18-7- 2008 issued by one of the member colleges of the 5th respondent, namely, the Kannur Medical College, wherein different last dates for submitting applications have been mentioned as 15-7-2008 and 31-7- 2008. In Ext. P5, it is stated that they have no agents for admission. Those advertisements do not refer to an admission procedure by any consortium or the 5th respondent. The contention is that for all the above reasons, the common entrance test proposed and conducted by W.P.C. No. 22499/2008 -: 5 :- respondents 5 and 6 does not fulfil the triple tests of being fair, transparent and non-exploitative, laid down by the Supreme Court in P.A. Inamdar's case (supra) and therefore, no admissions can be allowed to be made on the basis of that test. Therefore, the admission procedure has to be taken over by the State substituting its own procedure as laid down in P.A. Inamdar's case (supra), is the submission made by the petitioner. 4. The contentions of the petitioner are vehemently opposed by respondents 5 and 6, with the support of a counter affidavit filed by them. (Although an objection on the basis of the words 'writ in the nature of prohibition' in the first prayer in the writ petition has been raised, in view of deletion of those words by amendment, that objection looses relevance.) They firstly challenge the very locus standi of the petitioner to challenge the selection process. According to them, the petitioner has not even applied for admission pursuant to the notification inviting applications. The petitioner therefore is not an aggrieved person is the contention raised. They would submit that both grounds raised by the petitioner to attack the entrance test are unsustainable. According to them, what is prohibited under the MCI Regulations and the Supreme Court is midstream admissions. If the entire admission is completed before 30-9-2008, the same would satisfy the Supreme Court directives is the submission made. According to them, the object of fixing a time schedule is to prevent the State from delaying the admission procedure so as to convert the seat to be filled through All India Entrance Examination as seats to be filled up by the State Governments and Institutions. There are no all India quota seats in Self Financing Medical Colleges and therefore in respect of admissions in those Colleges, the time schedule fixed except the last date for completing admissions viz. 30th September, W.P.C. No. 22499/2008 -: 6 :- has no relevance, is the contention raised. To buttress this point, counsel for the 5th respondent would rely on paragraphs 21 and 22 of the decision of the Supreme Court in Medical Council of India v. Madhu Singh, [2002) 7 SCC 258]. 5. As regards the second objection against the test, they would contend that there is nothing to show that the test is not fair or transparent or that it is exploitative. According to the respondents the test ensures a fair and transparent merit based method of admission to all applicants. Originally, they decided to make admission to the management quota from the rank list published by the Commissioner of Entrance Examinations. But, after the results of the same were published, it was apparent that there would not be enough qualified students available from that list to fill up all the seats in all the Self Financing Medical Colleges in Kerala and that is why the six Medical Colleges decided to conduct their own entrance test. The delay in conducting the test was not wilful and was because of the delay in getting the approval of the Fee Regulatory Committee and the Admission Supervisory committee. According to them, they had informed the Admission Supervisory Committee by submitting a Scheme for conducting the admission process, including the conduct of the Common Entrance Test, which has been approved by the Committee as per Ext. R5(e). But the committee did not choose to supervise the examination, for which respondents 5 and 6 cannot be blamed in so far as they have conducted the test fairly and in a transparent manner. They would therefore submit that the Common Entrance Test conducted by them is fair, transparent and non- exploitative and the admission to be made on the basis of the same is not in any way liable to be interfered with by this Court. 6. The Admission Supervisory Committee is the 4th respondent W.P.C. No. 22499/2008 -: 7 :- in this writ petition and is represented by counsel. Counsel would submit that although a scheme for admission process, copy of prospectus and agreement with the Government had been produced before it, the Committee did not approve the same but only decided to record that the same have been filed. He would further submit that respondents 5 and 6 have not involved the Committee in the process of admission, consisting of publication of notification inviting applications, making available application forms, preparation of list of applications, framing of question paper, method of valuation etc., and therefore the Committee had no occasion to supervise the admission process as required under Section 4 of Act 19 of 2006. 7. The 1st respondent Government of Kerala has taken a neutral stand. According to them, under law, the Medical Colleges are entitled to have their own admission procedure subject to the same being fair, transparent and non-exploitative and the Admission Supervisory Committee is competent to look into all aspects of the same. 8. I have considered arguments of all parties in detail. 9. I do not find any merit in the preliminary objection raised by the 5th respondent regarding locus standi of the petitioner. For challenging the entrance test itself, it is not necessary that the petitioner should have been an applicant for admission. The petitioner is a person seeking admission to Medical Colleges in Kerala this year. She is included in the rank list prepared by the Commissioner of Entrance Examinations of Government of Kerala. She can aspire for admission to Self Financing Medical Colleges also. Therefore, she can certainly challenge the admission procedure adopted by those Colleges, if the same does not satisfy the conditions stipulated by the Medical Council of India, the Supreme Court of India W.P.C. No. 22499/2008 -: 8 :- and Act 19 of 2006, which only has been done by her. For becoming competent to do so, it is not necessary that she should have been an applicant pursuant to the notification inviting applications. In fact, if she had applied and written the test, the respondents could have raised the objection that after undergoing the admission process, she cannot turn around and challenge the process itself. She had approached this Court even before the conduct of the test by filing this writ petition challenging the same. Therefore, I hold that the petitioner has locus standi to challenge the validity of the admission process adopted by respondents 5 and 6. 10. Now, I shall deal with the challenge against the entrance test conducted by respondents 5 and 6, as being violative of the Medical Council of India Regulations and the directions of the Supreme Court in Mridul Dhar's case (supra). It is true that in that case, the Supreme Court examined the necessity of adhering to a time schedule for admissions to medical courses in the immediate context of prejudice that may be caused to meritorious students seeking admission on the basis of All India Entrance Examination. But, it cannot be assumed that the final directions issued was confined to that aspect alone. I may quote some of the relevant portions from paragraphs 8 to 12 of the judgment in this regard: “8. In Medical Council of India v. Madhu Singh, (2002) 7 SCC 258, while making it clear that no admissions can be granted after the scheduled date, which essentially should be the date or commencement of the course, MCA was directed to ensure that the examining bodies fix a time schedule specifying the duration of the course, the date of its commencement and the last date for admission. It was further directed that different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time and no variation of the schedule so far as admissions are concerned shall be allowed. In the case of any deviation by the institution concerned, action as prescribed shall be taken by MCI. W.P.C. No. 22499/2008 -: 9 :- 9. The Ministry of Health and Family Welfare, Government of India convened a meeting of the State Health/Medical Education Secretaries and the Vice-Chancellors of the universities of health sciences and as a result of of the discussion issued a directive dated 14-5-2003 to the Secretaries of health and Medical Education in all the States and Union Territories and to all universities awarding medical/dental degrees laying down the policy guidelines on admission of students and other allied matters, inter alia, having regard to the decision in Madhu Sing's case laying down the schedule for completion of the various stages of admission process, commencing of academic session and closure of admissions in courses of medicine and dentistry to be applicable to all medical and dental colleges in the country from the academic session 2003- 04 onwards. All State Governments, universities, medical and dental institutions in the country and any other authorities concerned were directed to strictly abide by the time-frame for completion of each of the stages of admission process indicated in the time schedule. It also directed that neither shall any student be admitted in any course of medicine or dentistry after expiry of the last date prescribed for closure of admission in that course nor shall any University register any such admission sought to be made. The State Governments were directed to take all necessary steps to prevent deviation from the prescribed schedule. 10. The directive dated 14-5-2003 also stipulates the cancellation of admission granted after the last date of closure of admission and warns the candidates of the consequences of taking admission after the last date for closure of admissions. Pras 8.4 and 8.5 of the directive read as under: “8.4. In exercise of the powers conferred by the Hon'ble Supreme Court, the Medical Council of India or the Dental Council of India may direct that any student identified as having obtained admission after the last date for closure of admission be discharged from the course of study; or any medical or dental qualification granted to such a student shall not be a recognised qualification for the purpose of the Indian Medical Council Act, 1956 or the Dentists Act, 1948, as the case may be. The institution which grants admission to any student after the last date prescribed for the same shall also be liable to face such action as may be prescribed by MCI or DCI. 8.5. The time schedule for completion of the admission process as in the annexure shall also be printed in the bulletin of information for the candidates or the prospectus for admission to the course concerned. The candidates shall be clearly warned of the consequences of taking admission in any institution after the last date for closure of admission. 11. The time schedule for completion of the admission process for a medical and dental courses is as under: xx xx xx W.P.C. No. 22499/2008 -: 10 :- 12. Reference may also be made to notification dated 25-2- 2004 issued by the medical Council of India in exercise of the powers conferred by Section 33 of the Indian Medical Council Act, 1956 (for short “the Act”) with the approval of the Central Government, making the Graduate Medical Education (Amendment) Regulations, 2004, laying down the time schedule for completion of admission process for first MBBS course. It is on the same lines as the aforequoted time schedule. Time schedule (Appendix E to the Regulations) reads as under: APPENDIX E TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE. -------------------------------------------------------------------------------------------------------- Schedule for admission Seats filled up by Seats filled up the Central Gover- by the State nment through Governments/ All India Entrance institutions. Examination. --------------------------------------------------------------------------------------------------------- Conduct of Entrance Examination Month of May Month of May Declaration of results of qualifying exem/ entrance exam. By 5th June By 15th June First round of To be over by To be over by counselling/admission 30th June 25th July. Last date for joining Within 15 days the allotted colleges from the date of and course. allotment of seats. 31st July Second round of coun- selling for allotment of To be over by 8th Up to 28th seats from waiting list. August. August. Last date for joining form Within 15 days candidates allotted seats from the date of 31st August in second round of allotment of seat counselling from the (seats vacant after waiting list. 22nd August will be surrendered back to the States/ W.P.C. No. 22499/2008 -: 11 :- colleges) Commence of academic session. 1st of August. Last date up to which students can be admitted against 30th September. vacancies arising due to any reason. Thereafter, in paragraph 35, specific directions were issued by the Supreme Court of which the following are relevant for our purpose: “35. Having regard to the aforesaid, we issue the following directions: xx xx xx 2. The timetable mentioned in notification dated 25-2-2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State medical/dental entrance examination shall be declared before 15th June. 3. The States/Union Territories shall complete the admission process of first round of State-level medical/dental college admission by 25th July i.e. a week before start of second round counsellings or allotment of seats under all-India quota. The correct vacancy position shall be intimated by the Chief Secretary of the State/Union Territory to the DGHS by 26th July. It shall be verified by the Head of the institution/or Head of the medical institution/Health Department of the State. 4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territory and/or Health Secretaries to ensure compliance with the directions of this Court and requisite time schedule as laid down in the Regulations and non-compliance would make them liable for requisite penal consequences. xx xx xx 6. By 31st October, the States, through the Chief Secretaries/Health Secretaries shall file a report in regard to admission, with the DGHS giving details about the adherence to a time schedule and admission granted as per the prescribed quota. The recalcitrant States, particularly officers personally will have to face the consequences for violation. W.P.C. No. 22499/2008 -: 12 :- xx xx xx 15. Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with.” 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,