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Judgment
P.V. Asha, J.—1. Two students, who were admitted in the Azeezia Institute of Medical Sciences and Research, Meeyannoor, Kollam, (hereinafter referred to as ''the College'' for short), which is a self financing institution, have filed this Writ Petition, challenging the order Ext. P15, by which the Admission Supervisory Committee (hereinafter referred to as the ''Committee'' for short) declined approval to the admissions granted to them to the courses M.S. (Master of Surgery) in Orthopaedics and M.D. (Doctor of Medicine) in Anaesthesia. They also challenge Ext. P9 order of the Committee approving the prospectus of the College to the extent it stipulates its prior approval for admission and the letter Ext. P18 by which the 1st respondent directed all the Self Financing Medical and Dental Colleges to take prior approval for admission of students for the academic year 2015-16 from it and to adhere to the time schedule fixed by the apex court.
According to the petitioners, they have acquired MBBS degree from B.R. Ambedkar Medical College, Bangalore and Pushpagiri College of Medical Sciences, Thiruvalla respectively. They appeared in the entrance examination conducted by the Karnataka Religious and Linguistic Minority Professional Colleges Association (''KRLMPCA'' for short) which is stated to be held under the supervision of the Admission Supervisory Committee of Karnataka State. Exts.P3 and P4 show that they are rank Nos. 386 and 370 respectively with scores 119 and 121 respectively out of 200 in that entrance test. Based on their applications, they were admitted in the College for the PG Degree courses of M.S. Orthopaedics and M.D. Anesthesia respectively on 8.6.2015 as per Exts.P11 to P13. But the Committee rejected their admissions as per Ext. P15.
The College furnished the list of the students admitted in the Post Graduate Medical seats for approval of the Committee. The Committee, on scrutiny of the same with reference to the qualifying certificates and other documents, found that both the petitioners who were admitted for M.S. Orthopaedic branch and M.D. Anaesthesia had qualified in the entrance examination conducted by KRLMPCA and they had not qualified in KEAM or in AIPGMEE entrance test. Hence it was found that their admissions were in violation of the conditions in Ext. P9 order dated 13.5.2015 of the Committee by which the prospectus was approved. Hence the Committee by its order Ext. P11 dated 18.11.2015 withheld their admissions. The Principal of the College was directed to appear before the Committee along with the petitioners and other two candidates whose admissions were withheld, for a hearing on 25.11.2015. By the very same order, the Committee requested the Registrar of the Kerala University of Health Sciences (''University'' for short) to register other candidates of the College whose admissions were approved. The Principal of the College was directed to inform the students about the withholding of the admissions.
Thereafter, the Committee conducted a hearing on 25.11.2015. The first petitioner appeared before the Committee. But he was not found qualified either in KEAM or in AIPGMEE entrance test. The only PG entrance test in which he got qualified was the test conducted by KRLMPCA. The College did not produce any records to show that candidates, who were qualified in the PG entrance test of the Commissioner for entrance examination or from the AIPGMEE, were not available. It did not even produce any records to show the attempts, if any, they made to ascertain the availability of qualified candidates from the national level test- AIPGMEE or in the entrance test conducted by the Commissioner of Entrance Examination (KEAM). Apart from all these, they did not choose to contact the Committee also. The College did not obtain prior permission for admitting the petitioners who had appeared only in the entrance test conducted by an association of another State viz. KRLMPCA. In the above circumstances, the Committee rejected the admission of the first petitioner, as the same was not made from the list of KEAM or AIGPMEE or any national level entrance examination on merit. The 2nd petitioner did not appear before the Committee. From the records available, she was also found to be unqualified, in the absence of any material to prove that she got qualified in KEAM test or AIPGMEE test. Hence approval was declined to her admission also, as in the case of the first petitioner. It was found that the admission granted to the petitioners did not satisfy the triple test of merit, transparency and fairness, the pre-requisites to achieve academic excellence as laid down by the Honourable Supreme Court. The petitioners are challenging the rejection of their admissions as per the order Exts.P14/P15.
The petitioners submit that they were granted admission in accordance with the provisions contained in the prospectus and they have been pursuing their studies bonafide believing that they were granted admission in accordance with rules. They also contended that they were subjected to discriminatory treatment insofar as the Committee had by Ext. P19 order granted approval for admission to MDS course to the students, who got qualified in similar entrance test viz. COMEDK PG entrance test conducted in Karnataka state, in Pushpagiri College of Dental Sciences, Thiruvalla.
We heard Sri. Jose, learned counsel appearing for the petitioners, the learned Senior Counsel appearing for the College, the learned Standing Counsel appearing for the Committee as well as the University and the learned Government Pleader and considered the contentions and the pleadings.
The 4th respondent College is affiliated to the Kerala University of Health Sciences. Exts.P5 and P6 orders issued by the University would show that the College is having affiliation in respect of the Post Graduate Medical courses with a total of 10 seats as follows: M.S. Degree in Orthopaedic with two seats, M.D. in General Medicine with four seats, M.D. in Anesthesiology with two seats and M.D. in Dermatology Venereology and Leprosy and M.D. in Pharmacology with one seat each.
On 7.5.2015, the College has entered into a seat sharing agreement Ext. P7 with the Government, according to which 50% of the total PG Medical (MS/MD/Diploma) seats sanctioned in the College would be filled up by the Government from the list prepared by the Commissioner for Entrance Examinations in accordance with merit and principles of reservation, from the list of candidates furnished by the Commissioner for entrance examinations. 50% of the seats are to be filled up by the management out of which 15% can be filled up by children/dependents of Non Resident Indians. Clause 6 of the agreement provides that the seats under the management quota except NRI quota are to be filled up on the basis of merit from the list of candidates who have qualified in AIPGMEE 2015/Kerala State Post Graduate Medical Entrance Examination-2015 conducted by the Commissioner for entrance examination. It is further provided that in the absence of sufficient number of qualified candidates under the AIPGMEE 2015 examination conducted by the Commissioner for entrance examination, the management can admit students on the basis of any Post Graduate Medical Entrance Examination 2015 conducted by any competent authority as per Medical Council of India norms.
Ext. P8 is the prospectus relating to the admission to Post Graduate Medical M.D./M.S. courses for the academic year 2015-16 in the College. Clause 2.2 (f) of the prospectus provides that all aspiring candidates shall have to qualify either in the Kerala State Entrance examination for admission to Post Graduate Degree Medical Courses (PGM- Kerala 2015) or in AIPGMEE-15 or in any other PG Medical Entrance Examination conducted by any State Government or University for admission session 2015. It is also necessary that the candidates should obtain not less than 50% marks in the entrance examination.
The Committee, as per Ext. P9 order dated 15.5.2015, approved the prospectus Ext. P8, stipulating several conditions. The first condition was that, the admission of candidates to PG Medical courses in the management quota shall be from the rank list prepared by the Entrance Test conducted by the Commissioner for Entrance Examination based on merit and in case required number of candidates are not available, the admission can be from AIPGMEE or such other examination held by competent authorities under the supervision of the Committee for the respective academic year, after obtaining prior approval of the Committee and after establishing that there is non-availability of PG candidates.
On the basis of the seat sharing agreement entered into between the College and the Government, the Government issued Ext. P10 order i.e G.O.(Rt) No. 1325/2015/H&FWD dated 5.5.2015, directing the Commissioner for Entrance Examination to allot students for admission to Post Graduate/Dental Courses for the academic year 2015-16, on the terms and conditions mentioned therein. Clause 6 of the Government order, which relates to admission under the management quota reads as follows:
"6. 50% of the total seats shall be management quota seats (except NRI quota) to be filled up by the Educational Agency on the basis of merit from the list of students who have qualified themselves in Kerala State Post Graduate Medical Entrance Examination 2015. In the event of sufficient number of qualified candidates under Kerala State Post Graduate Medical Entrance Examination 2015, who have applied for Management quota seats in the institution concerned are not available, the Managements can admit students on the basis of any P.G. Medical entrance Examination 2015 conducted at the National level as per MCI norms".
Accordingly, the seats under the management quota were also to be filled up from the list of students who got themselves qualified in the PG Medical Entrance Examination 2015 conducted by the Commissioner for Entrance Examination. In the absence of such students, the management can admit students on the basis of PG Medical Entrance Examination 2015 conducted at the national level as per MCI norms. While approving the prospectus as per Ext. P9, one of the conditions to be fulfilled by the College with respect to the admission was the following:
"01. The admission of candidates in the 35% management quota PG medical seats shall be from the inter-se merit of the rank list prepared by the Entrance Test conducted by the Commissioner for Entrance Examinations and in the event of nonavailability of required number of candidates, the admission can be from AIPGMEE or such other examination held by competent authorities under the supervision of the Committee for the respective academic year, after obtaining prior approval of the ASC and establishing that there is non availability of PG candidates."
Despite all these it is seen that the College did not choose to get permission or to even intimate the Committee before it admitted the petitioners, who got qualified in a test conducted by Karnataka Religious and Linguistic Minority Professional Colleges Association. In Ext. P14, the Committee noticed the admissions granted in violation of the conditions stipulated in Ext. P9 order of approval and it was only after affording an opportunity of hearing to the petitioners as well as to the College that the Committee rejected their admissions as none of them could establish that those admissions satisfied the conditions stipulated in Ext. P9 order. There was no transparency or fairness in the procedure adopted by the College.
The College did not take any steps to ascertain the availability of students who passed the entrance examination of either Kerala or All India PG as stipulated in the order approving prospectus or the Government order Ext. P7. It did not even intimate the Committee about the admissions even when the list was submitted for approval, despite the direction in Ext. P9 that they should get prior approval of the committee when admissions were sought to be made from other sources, due to nonavailability of qualified hands. Clause 01 of Ext. P9 specifically provides that they have to establish the non-availability of PG candidates and to obtain prior approval if they want to admit students who qualified in entrance tests other than those conducted by the entrance commissioner of Kerala (KEAM) or AIPGMEE. In the absence of any records to show any attempts made by the College to ascertain the availability of candidates or to get prior approval the action of the Committee cannot be faulted.
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 the ''Act'') was enacted, in order to ensure equity and excellence in the professional education. It is the duty of the Committee to see that the admissions to these Colleges are made in a fair, transparent and non-exploitative manner strictly in terms of merit and in accordance with the provisions of the Act. The Committee has got every authority to supervise the conduct of the examinations and to see that admissions are made strictly in accordance with merit, in order to ensure excellence in the professional education.
Section 4(6) of the Act provides as follows:
"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 this Act."
It is in exercise of its power to guide the process of admission that the Committee stipulated certain conditions while approving the prospectus and directed the self financing Medical and Dental Colleges to obtain prior permission at all stages of admission. As per Clause 01 of Ext. P9 order, the College has to get approval before it admits any student from a list other than from the rank list of the Commissioner for Entrance examination, Kerala or from AIPGMEE. These conditions are stipulated, so as to enable it to render effective supervision over each and every step taken for filling up each of the seats, in order to see that merit is not sacrificed. It is duty bound to ensure transparency and fairness in the process of admission and the same is not tainted with exploitative measures.
The fact that permission was not sought for admitting the petitioners who did not get qualified in KEAM or AIGPEE and that no intimation was given to the Committee about the nonavailability of candidates from the rank list of the Commissioner for Entrance Examination, or the All India PG entrance examination are practically admitted. The petitioners are challenging the provision in Ext. P9 and the letter Ext. P18 which insists on prior approval for admission to PG Medical courses. It is clear that the College has not sought or got prior approval. Therefore it is evident that the action of the College in granting admission to petitioners lacks transparency and bonafides in as much as they did not choose to undertake this process with intimation to the Committee and they did not even seek any approval from the Committee before granting admissions.
Sub section 7 of Section 4 of the Act provides that the Admission Supervisory Committee may declare admission 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. In this case, the Committee found that there was no prior approval obtained by the College for admitting the petitioners. The College was bound to convince the Committee about the non-availability of candidates who got qualified in the Entrance Examination conducted by the Commissioner for Entrance Examination or under the All India P.G Dental Entrance Examination or in the test conducted by consortium. In such an event, the Committee itself would have taken steps to ensure the correctness of such claim and would have notified the vacancies. It is only when the Committee scrutinised the list of candidates admitted in the College that, it found that admissions were granted to the petitioners, contrary to its directions.
Smt. Mary Benjamin, the learned Standing Counsel for the Committee, pointed out that, even when the college forwarded the list of candidates, they did not choose to make any mention that they had made admissions from a list of another State. They did not also intimate the Committee that they made any attempt to ascertain the availability of students in the rank list of KEAM PG or AIMPGMEE. In the event of an intimation being given, the Committee itself would have notified the availability of seats in the College, as done in the case of the Colleges under the Kerala Christian Professional College Management Federation, who had also entered into a seat sharing agreement with the Government. Evidently the College has carried out the process leading to the admission of petitioners without adopting a transparent procedure and intimation to the Committee and therefore, apparently without any bonafides. It is, in these circumstances, that the Committee has declined approval.
The petitioners have raised a contention that the Committee has approved admissions granted by the Pushpagiri College of Dental Science to the candidates qualified in COMEDK in Ext. P19. Therefore, the next question to be determined is whether such approval will enable grant of approval to the admission granted to the petitioners. The order Ext. P19 itself is self explanatory and makes it clear that those admissions were granted with prior permission, and the counselling on each occasion was made under the supervision and guidance of the Committee. The transparency in the procedure adopted under the supervision of the Committee is evident from Ext. P19 itself. It is seen that the Director of Kerala Christian Professional Colleges Management Federation, of which Pushpagiri College is a member, had requested the Committee to conduct a final spot counselling on 8.6.2015, against the seats which remained vacant after the counselling held on 1.6.2015. The preference was to admit applicants qualified in Kerala Government PG Dental entrance examination and in case such applicants were not available, to admit applicants from the rank list of AIPGDEE and in the absence of such candidates, to admit applicants qualified in the entrance test of other State Governments/Universities. On receipt of the letter from the Director, the Committee directed the College/KCPCMF on 1.6.2015 itself to give wide publicity in leading dailies so as to give timely and adequate information to the aspirants of PG Dental courses and directed them to furnish the details to publish the same in the website of the Committee also. Accordingly, the details were furnished; wide publicity was given and the committee had also notified the availability of seats. It was thereafter, on being satisfied as to the nonavailability of candidates despite the steps taken by the College as directed by the Committee, that approval was granted in Ext. P19.
Thus approval by Ext. P19 was in a case where prior approval was granted at every stage leading to the admission of those students. But in this case, there is no prior approval. The fact that the petitioners got qualified in KRLMPCA was made known to the Committee only when the list of candidates was forwarded. The Committee is duty bound to check profiteering, charging of capitation fee in the process of admission while ensuring excellence and equity in professional education for which there should be transparency in the entire process where merit is not sacrificed.
The extent to which State can regulate the admissions made by unaided educational institutions and the question whether such institutions are free to devise their own admission procedure or whether the directions made in Islamic Academy of Education v. State of Karnataka and Others [, (2003)6 SCC 697] for compulsorily holding an entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in the light of the law laid down in T.M.A. Pai Foundation V State of Karnataka [, (2002)8 SCC 481], were considered by 7 member Bench of the Apex Court in P.A. Inamdar v. State of Maharashtra [, (2005) 6 SCC 537]. Observing that, paragraphs 58 and 59 of the judgment in Pai Foundation permit regulations to be framed for admission in professional institutions by the State agency to ensure admission on merit, it was held that, admissions in Private unaided institutions can be regulated to ensure that the same is done on the basis of merit in a fair and transparent manner in the interest of the student community. After discussing the history, case law on the point and various aspects including the nature of right of the minorities, in paragraph 144 of the judgment, the Apex Court held that, the two Committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy are permissible as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation were held to be only reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution. It is pertinent to note that, the Apex Court did not accept the suggestion of the Colleges to have checks after the institutions adopted their own admission procedure, taking note of experience of the educational authorities of various States. It was held that, the admission procedure and fixation of fees should be regulated and controlled at the initial stage in order to keep away the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates.
In Fathima Haneena v. State of Kerala and Others [, 2008 (3) KLJ 224], a learned Single Judge of this court, considered the legality of the procedure adopted by the professional Colleges in the matter of admission in violation of the conditions stipulated by the Medical Council of India, the Supreme Court of India and Act 19 of 2006. A student approached this Court challenging the entrance test scheduled to be held by the Self Financing Colleges beyond the schedule of time prescribed by the Apex Court and the admission was notified to be made on the basis of marks in the Physics, Chemistry and Biology in the qualifying examination and marks obtained in the entrance examination conducted by the Association of Self Financing Colleges, on the ground that the same was against the schedule prescribed by the Medical Council of India. as approved by Supreme Court of India in Mridul Dhar & another v. Union of India and others [, (2005) 2 SCC 65] and the scheduled test did not satisfy the triple tests of being fair, transparent and non-exploitative as held in Inamdar''s (supra) case. This Court found that there was violation of the time schedule which is impermissible. Regarding the entrance test, this Court after referring to the observations of the apex court in Inamdar''s case (supra) and the provisions contained in Section 4 of the Act 19 of 2006, which was upheld in Lisie Medical & Educations Institutions v. State of Kerala [2007 (1) KLT 409], held that the provisions contained in sub-sections (6) and (7) of S. 4 of the Act especially in subsections 6 and 7 thereof and in the light of the judgment of the division bench in Lisie Medical Education (supra), the entire process of admission has to be mandatorily supervised by the Admission Supervisory Committee, for ensuring that the same is fair, transparent and non-exploitative. From the beginning of the admission process, at every stage, the college ought to have got approval of the Admission Supervisory Committee in respect of the same. The said decision was followed in Noorbina Banu v. State of Kerala [, 2010 (3) KLT 581] where also challenge was against the conduct of entrance test. The question whether the colleges should obtain prior approval of the Committee at every stage of admission was considered elaborately by another learned Single Judge of this court in Amina Nahna v. State of Kerala [, 2011 (3) KLT 753]. After discussing the case law on the point including the decisions of the Apex Court in Pai Foundation case, Islamic Academy of Education (supra) and Inamdar''s case (supra) and the Division Bench judgment of this Court in Lisie Medical Education (supra) and also the judgments of Fathima Haneena & of Noorbina Banu (supra), this Court reminded the Committee of the statutory duties enjoined on it in order to achieve the purpose for which the Act 19 of 2006 is enacted and to see that the triple test of fairness, transparency and merit based is satisfied in the matter of admissions to the professional colleges. In para 42 it held that, at every stage of the admission process, the Association should have obtained prior approval of the Committee and that the absence of prior approval, as held by this Court in Anna Haseena''s case (supra) and Noorbina''s case (supra), will invalidate the selection process. The ratio of the above judgments was approved and reiterated by the Division Bench of this Court while upholding the cancellation of the entrance test held by the association and explaining the powers and duties of the Committee in regulating admissions, conduct of Entrance Examination and to oversee the procedure of admission as explained by this Court, in the judgment in Kerala Private Medical College Management Association v. Admission Supervisory Committee For Professional Colleges [, 2013 (3) KLT 316].
In this case the petitioners were granted admission in violation of clause 2.2 (f) of Ext. P8 prospectus read with clause 01 of Ext. P9 of the Committee and also in violation of Ext. P18 letter of the Committee. Ext. P9 order as well as Ext. P18 letter are issued by the Committee in exercise of its power to ensure that admissions are made adopting a fair, transparent and merit based procedure and to see that the same is non exploitative without giving room for profiteering or extraction of capitation fee with the ultimate goal of achieving excellence in post graduate professional education.
Under the above circumstances, we do not find any reason to interfere with the orders passed by the Admission Supervisory Committee. The petitioners are not entitled to any relief in the Writ Petition.
Hence the writ petition fails and we dismiss the same.