Case: ANITTA JOB Vs. THE STATE OF KERALA

2. The brief facts of the case which need to be noted for deciding this appeal are:The Malabar Medical College and Research Centre has sanctioned intake capacity of 150 students in MBBS Course. With effect from 2016-2017 admission in MBBS Course was to be conducted on the basis of NEET examination. This Court vide its order dated 06.05.2016 in Sankalp Charitable Trust and Anr. v. Union of India and Ors. (2016) 7 SCC 487 , has directed that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college or association or any private/deemed university. All admissions in the MBBS Course were to be done on the basis of National Eligibility-cum-Entrance Test (NEET). All the Appellants appeared in the NEET examination and declared qualified with their respective ranks. The State of Kerala has issued various Government orders pertaining to admission procedure in Government/Management/NRI seats in the private/self-financing Colleges. As per the orders issued by the Government of Kerala, the Commissioner of Entrance Examination shall make allotment for MBBS in the Government Management/NRI seats in all private/self-financing Colleges3. The Writ petitions were filed by different Medical Colleges challenging the Government Orders. The Kerala High Court in a bunch of writ petitions, leading writ petition being No. 28041 of 2016 on 26.08.2016 stayed the orders issued by the State of Kerala with certain directions pertaining to admission in MBBS/BDS Courses. The Malabar Medical College (hereinafter referred to as the College) submitted a prospectus to the Admission Supervisory Committee (hereafter referred to as the ASC) and got it approved on 06.09.2016. As per the order passed by the Kerala High Court dated 26.08.2016 and as per procedure laid down by the ASC, the applications for admissions were to be made on-line. Last date for submitting application on-line for admission was 09.09.2016. The respective Colleges were also directed to publish the list of applications received on-line so as to enable the ASC to supervise and guide the entire admission process4. The Appellants case is that although they obtained the demand drafts from banks pertaining to the fee for admission prior to 09.09.2016, but their on-line applications could not be submitted due to some snag in the website of the College. On 13.09.2016 College published a list of 1335 candidates in which the names of the Appellants were not there. Certain other candidates whose names were not included in the list filed complaints before the ASC. The ASC taking cognizance of the complaints issued an order on 22.09.2016 noticing the stand of the College that their names shall be included in the list of eligible candidates. After receiving the aforesaid order dated 22.09.2016 a notice was also issued by the College on their website on 23.09.20165. The notice dated 23.09.2016 represented to the students that applications from all those with proof of (i) their unsuccessful attempts for registration and (ii) with demand draft taken before the scheduled cut off date, shall be accepted by the College. The Appellants in pursuance of the notice 23.09.2016 by the College submitted their applications along with proof that the demand drafts were taken before the scheduled cut off date. Supplementary list of 33 eligible students was published by the College on 27.09.2016 in which names of all the Appellants were included. The College had earlier made two attempts for admission in the Management quota/NRI quota but seats could not be filled up6. On 28.09.2016, the Appellants were admitted by the College and on 30.09.2016, the list of 142 students including the names of the Appellants were registered with the Kerala University of Health Sciences. Eight seats belonging to Management/NRI quota which remained unfilled were surrendered to the Government and on the basis of order dated 05.10.2016, 8 candidates were forwarded to the College by the Commissioner of Entrance Examination which were also admitted by the College. After their admissions, the Appellants started attending their classes, the details of admissions taken by the College of Management/NRI quota was forwarded to ASC. The ASC by order dated 04.03.2017 withheld the admissions of 78 candidates under Management quota and 8 candidates under NRI quota made by the College. On 05.10.2016, the Management had already forwarded the details of all the admissions including the admissions of the Appellants to the ASC. The ASC by order dated 03.06.2017 rejected the case of four of the candidates who had admitted in the College in the Management quota on the ground that their names are outside the list published by the Medical College and with regard to six Appellants who are admitted under NRI quota, their admissions were disapproved as they have not included in any of the on-line application lists submitted by the Medical College7. Then aggrieved by the order dated 03.06.2017, Appellants filed Writ Petition (C) No. 24133 of 2017 in which an interim order was passed on 27.07.2017 permitting the Appellants to appear in the First Year MBBS Examination. The writ petition was ultimately dismissed by the Division Bench of Kerala High Court vide its judgment dated 04.01.2018 against which this appeal has been filed8. This Court while entertaining the appeal on 16.02.2018 directed that in the meantime, interim order that was passed during the pendency of the writ proceedings before the High Court shall operate.

Reasoning: 17. There cannot be any dispute with the procedure which was prescribed for admissions in MBBS Course, students were to make applications on-line and last date for making such applications was 09.09.2016. There is also no dispute that Appellants could not succeed in making any on-line application prior to 09.09.2016 although they claim to have prepared a demand draft before the last date of admission.21. The order dated 22.09.2016 has to be treated as passed by the ASC in exercise of the abovesaid statutory power. It is true that in the order dated 22.09.2016, there was no clear direction that names of other candidates who have not even submitted complaints should be included or any fresh applications be invited but College taking guidance from the aforesaid order issued the notice extending the similar protection to all the candidates who come with their unsuccessful attempts for registration but with the rider that they should come up along with demand drafts taken before the scheduled cut off date. The requirement of demand draft taken before the scheduled cut off date was an important factor which prohibited the candidates who had never thought of making an application in the College to come up with their applications with any fresh demand draft. Notice dated 23.09.2016 clearly prohibited all the candidates who had not taken demand draft prior to 09.09.2016 which was the last date of admission. In the present case College had filed details of demand drafts of the Appellants and it was not disputed that they submitted their applications with demand drafts taken before the last date of application. The High Court has taken a view that since they have not made on-line applications prior to 09.09.2016 they were not entitled for admission and requirement of submitting on-line application was a condition which having not been fulfilled, their applications were disapproved by the ASC and the High Court has also come to the conclusion that their applications were made after 09.09.2016 and they were admitted in the College on 28.09.2016. There cannot be any dispute that as per procedure prescribed and the interim order of the Kerala High Court dated 26.08.2016 students were to submit admission applications to the respective Colleges on-line and the admissions were to be taken on merit as reflected in the NEET examination22. During the course of hearing we had repeatedly asked learned Counsel appearing for the Respondents as to whether any candidate having merit higher to the Appellants in the NEET examination, has submitted any complaint or made any protest to any authority complaining that he had made application to the College having secured higher rank to the Appellants and has been denied the admission. The Respondents could not point out any such details of any candidate who was included in the list published by the College and who had higher NEET rank to the Appellants and has raised grievance regarding non-admission. It is also on the record that in fact after admission made in the Management quota and NRI quota still 8 seats were not filled up which were surrendered to the Government by the College23. Details of names of eight candidates, invited for spot admission against the still vacant seats, forwarded to the College were admitted on 07.10.2016 (within the date as extended). The details of 8 candidates who were admitted on the basis of the allotment made by the Government is found at Annexure P-7 and on perusal of the names along with their NEET rank, the inter se ranks of the candidates which were admitted subsequent to the Appellants clearly indicate that four candidates are lower in the NEET rank to the Appellants. After receiving the applications from Appellants and after being satisfied that they had demand draft prior to 09.09.2016 and had made unsuccessful attempts for their registration the College published their names on 27.09.2016 which list is also on the record. The ASC which is entrusted to supervise and guide entire admission process having issued the order dated 22.09.2016 asking the College to include the names of 7 candidates whose names were not earlier included, the College extended the said benefit and the facility to other candidates who come with proof of unsuccessful attempts for registration along with demand drafts taken before the scheduled cut off date of admission. We are unable to see any mala fide or any oblique motive in publishing notice dated 23.09.2016 by the College. They received order for inclusion of 7 such candidates whose names were included in the list and extended the same benefits to other similarly situated.25. The case of Rishabh Choudhary (supra) was a case of candidate who was admitted by the College in the year 2016-2017 in MBBS Course on the basis of examination conducted by the College. This Court noticed in the aforesaid judgment that this Court having already passed an order dated 11.04.2016 recalling the judgment of this Court dated 18.07.2013 in Christian Medical College, Vellore and Ors. v. Union of Inida and Ors (2014) 2 SCC 305 , the notification issued by the Medical Council of India on 21.12.2010 reviewed that the examination was to be conducted by NEET. This Court in Rishabh Choudhary case (supra) has also noticed the order of this Court dated 06.05.2016 in Sankalp Charitable Trust (supra) where this Court has directed that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college.Present is not a case where the Appellants did not appear in the NEET examination or they were granted admission disregarding the merits of other candidates in NEET. No details of any candidate who secured higher rank or merit to the Appellants and was not given admission in the College has been brought to our notice. It may be true that the order of the ASC dated 22.09.2016 did not expressly permit the College to invite all the candidates who had earlier made their unsuccessful attempts for on-line registration to come up for being included in the list of eligible candidates of the College but the College having given such opportunity to others in addition to 7 candidates who had complained to the ASC, such action of the College cannot be termed the mala fide or with oblique motive especially when similarly situated candidates were included in the list of eligible candidates. The High Court had not given due consideration to the important condition which was put by the College in the notice dated 23.09.2016 that candidates who come, claiming that they made unsuccessful attempts for on-line registration and come up with proof to show that they had prepared demand draft of fee which was of prior date to the last date of admission. The above safeguard was enough to ward of applicants who never thought of admission in the College prior to last date of admission27. It is not disputed that the Appellants had proof of demand drafts in the name of College which were prior to the last date of admission. In the facts of the present case where admission was also notified by the University on 30.09.2016 and the ASC for the first time disapproved their admissions only on 03.06.2016 and further the Appellants were also permitted to appear in the examination of MBBS First Year by the High Court, at this distance of time, we are not inclined to throw the Appellants out of the College on account of the above shortcomings as pointed by the ASC and the High Court.