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2005 DIGILAW 31 (KER)

Sen P. A. v. The Co-Operative Medical College

2005-01-17

A.K.BASHEER, B.SUBHASHAN REDDY

body2005
Judgment :- Subhashan Reddy, CJ. This batch of cases relates to admissions into MBBS course for the academic year 2004-05 and involves interpretation of the proviso to sub-section (4) of Section 3 of the Kerala Self-financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act, 2004 [hereinafter referred to as "the Act"]. The Writ Appeals are directed against the orders of the learned single Judge dismissing their claims for admission into respondents-medical colleges which are self-financing colleges within the meaning of Section 2(j) of the Act. The Act came into force on 15.7.2004 on receipt of assent of the Governor and then gazetted. The history leading to the enactment of the Act need not be gone into except in stating that the Act is purported to have been made pursuant to the observations of the Five-Judge Constitution Bench of the Supreme Court in Islamic Academy of Education v. State of Karnataka ({2003} 6 SCC 697). Of course, in the said judgment the Supreme Court said that whatever arrangements have been ordered in the said judgment were subject to a Parliamentary enactment. The subject of "education" was in List II of Schedule VII, but, by virtue of the 42nd Constitutional amendment the same was lifted and placed in List II-Concurrent List. Under Article 254 of the Indian Constitution, both the Parliament and State Legislatures are entitled to enact laws subject tot eh provisions state therein. However, without going into further details it is suffice to state that the Act itself is questioned before the Supreme Court in W.P. (C) No.374 of 2004 and also W.P.(C) No.12 of 2005. Before the said Writ Petitions were filed the said Act also came up for interpretation before a Division Bench of this Court in W.A. Nos.1786, 1789 of 2004 and batch. The Division bench headed by Justice K.A. Abdul Gafoor rendered the judgment in Academy of Medical Sciences v. Regina reported in (2004 (3) KLT 628). The issue arose before the said court related to Section 3 of the Act pertaining to the validity of the rank list prepared for the management quota. The management quota is 50% of the sanctioned seats and the respondent as-colleges even though entitled for conducting a separate common entrance test by a consortium chose to select the candidates for admission opting to common entrance examination rankings. The management quota is 50% of the sanctioned seats and the respondent as-colleges even though entitled for conducting a separate common entrance test by a consortium chose to select the candidates for admission opting to common entrance examination rankings. Common Entrance Examination (hereinafter referred to as "CEE") is conducted by the Commissioner for Entrance Examination appointed by the Government. While in government medical colleges the students are admitted to all the sanctioned seats basing upon the ranking in CEE and on payment of the fees prescribed by the government, which is much lower to that of the self-financing colleges, self-financing colleges are now made eligible to have their quota to the extent of 50% of the sanctioned seats and also to levy the fees structure as fixed by the Committee constituted pursuant to the judgment in Islamic Foundation case (supra). The fees structure was the subject matter in another batch of cases in which a separate judgment is being rendered today. That is a question apart in these cases. 2. The learned single Judge as also the Division Bench referred to above set aside the select list of the respondents-private colleges on the ground that it does not conform to the rankings of CEE and that the admissions were granted by pick and choose. The appellants in W.A. Nos. 2108 and 2225 of 2004 were admitted into MBBS course in the private medical colleges arrayed as respondents. But, their appointments were cancelled because of setting at naught the select list of the said colleges. The other Writ Appellants have paid fees and were provisionally admitted pursuant tot eh interim orders of the Court. The appellants in W.A. Nos.2108 and 225 of 2004 have been regularly admitted and paid their fees before 30.9.2004 which is the last date set and insofar as the other appellants are concerned, as already mentioned, have been admitted provisionally on their payment of fees which was pursuant to the orders of this court. That was also before 30.9.2004. The judgment of this Court has been carried to the Supreme Court and initially status-quo order was granted, but the same was vacated later and the appeals are still pending. 3. While disposing of the matters earlier, this Court in Academy of Medical Sciences case (supra) held in paragraph 64 as under: "64. That was also before 30.9.2004. The judgment of this Court has been carried to the Supreme Court and initially status-quo order was granted, but the same was vacated later and the appeals are still pending. 3. While disposing of the matters earlier, this Court in Academy of Medical Sciences case (supra) held in paragraph 64 as under: "64. As we have upheld the impugned judgment and confirmed the setting aside of the admission already conducted by the appellants, we direct the appellants to finalize the list of candidates from among those who were admitted by them originally and from those who were provisionally admitted on 30.9.2004 based on the said interim orders and a fresh list for admission to Management Quota shall be drawn up solely based on the ranking of those candidates in the State Merit List provided that: (i) The candidate have ranking in the State Merit List. (ii) They have submitted application pursuant to the notification issued by the appellants concerned. (iii) They had attended the counseling or interview, as the case may be, on the respective dates fixed by the Appellants. (iv) They have obtained initial admission or provisional admission on r before 30.9.2004. (v) The admission of the candidates viz., Haridas P. Mani and Devi Priya R.S. (respondents 6 and 7 in the Writ Petition) in the 1st Appellant college and that of Reshmi S. in the 2nd Appellant College are not disturbed, as those admissions were not set aside as per the impugned judgment . (vi) Finalization of the admission to the rest of the seats in Management Quota shall be strictly based on the list so prepared. In case, a candidate on the top of the list so prepared is unable to attend the course for any reason, the next in the list shall be offered that seat. The Appellants shall finalize the respective lists within two weeks from today, and shall regularize the provisional admissions. On completion of the said two weeks, the details of the candidates thus admitted shall be furnished to the Registrar of this Court/District Collector, Kannur and the Registrar/district Collector, Kannur shall thereupon hand over the fees remitted by such candidates to the respective college management. The balance fees shall be refunded to the respective candidates and when they apply to the Registrar/District Collector, kannur, as the case may be." 4. The balance fees shall be refunded to the respective candidates and when they apply to the Registrar/District Collector, kannur, as the case may be." 4. While preparing the fresh list pursuant to the above court directives the Writ Appellants were excluded. If their exclusion is based upon their rankings beyond the 50% quota of the managements, there cannot be any complaint. Their complaint is that even though they have come within the 50% of the management quota according to the rankings assigned in CEE and the corresponding rankings in the respondents-colleges, they have been kept out of the list by inflating the quota of NRIs beyond the permissible limit under the statute. The learned single Judge, by judgments under these appeals, have repelled the claims of the appellants on the ground that the Writ Petitions are belated and are also hit by res judicata. The Division Bench judgment in Academy of Medical Sciences case (supra) was rendered on 1.10.2004 and a time of two weeks from that date was given to re-draw the admission list relating to management quota and shortly after the re-drawal of the list, finding that the appellants do not find their names in the said list, without any delay they have filed the Writ Petitions and as such it cannot be said that the appellants are guilty of any latches. Insofar as the ground or res judicata is concerned, the issue which is raised, i.e., excess allotment under NRI quota, was not the one which arose for adjudication and as such it cannot be said that the principles analogous to Section 11 of Code of civil Procedure are applicable and we accordingly hold that the ground of res judicata cannot also disable the appellants from tapping the doors of this Court. In fact, the main complaint is non-enforceability of the directives of this Court issued in Academy of Medical Sciences case (supra). The appellants satisfied all the conditions (i) to (v) imposed by this Court in paragraph 64 of the judgment in Academy of Medical Sciences case (supra). In fact, the main complaint is non-enforceability of the directives of this Court issued in Academy of Medical Sciences case (supra). The appellants satisfied all the conditions (i) to (v) imposed by this Court in paragraph 64 of the judgment in Academy of Medical Sciences case (supra). It is pertinent to note that the respondents-students who have been admitted once we4re also parties and even though they were selectees their selections were set aside on the ground already stated and if they have really secured more ranks than the appellants in CEE corresponding to the respective colleges then the appellants cannot have any grievance at all. But the appellants' case is that even though they secured higher ranks than those respondents-students, the respondents-students got entry through back door under the guise of being the dependents of NRIs and in inflating the quota of NRI, the respondents-managements have done injustice to them. This claim of the appellants hinges upon the interpretation of the proviso to sub-section (4) of Section 3 of the Act. To understand the matter fully, we feel it apt to extract the entire Section 3, which reads as under: "3. Procedure for admission into self financing professional colleges: - (1) Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court or any other authority or in any agreement, the admission of students into a self financing professional college shall be made on the basis of merit as provided in sub-sections (2) to (6). (2)In every self financing professional college fifty per cent of the total seats in each branch shall be Government Quota and the remaining fifty per cent shall be Management Quota. (3) Seats in the Government Quota shall be filled up based on counseling by the Commissioner for Entrance Examinations on the basis of the ranks in the common entrance examination conducted by him, following the principles of reservation as ordered by the Government from time to time. (4) Seats in the Management Quota shall be filled up either from the list prepared on the basis of the Common Entrance Examination conducted by the Commissioner for Entrance Examinations or from the list prepared on the basis of the common entrance test conducted by a consortium of a particular type in the State. (4) Seats in the Management Quota shall be filled up either from the list prepared on the basis of the Common Entrance Examination conducted by the Commissioner for Entrance Examinations or from the list prepared on the basis of the common entrance test conducted by a consortium of a particular type in the State. Provided that managements shall have the option to earmark not more than 15% of the seats in the Management Quota to dependents of Non-Resident Indians and in that case the admission of the candidates shall be made on the basis of the marks they have obtained in the qualifying examination. (5) Educational qualification for admission in the self financing professional college shall be the same as are applicable to the corresponding courses in the Government colleges as may be notified by the Government from time to time. (6) Notwithstanding anything contained in sub-section (1), lapsed seats, if any, may be filled up by the management in accordance with sub0-sections (4) and (5). 5. While the learned counsel for the petitioners interpret the said proviso as 15% of the 50% of management quota which comes to 7½ seats in the sanctioned strength of 100 medical seats (some pleading that it should be 7 and others pleading as 8 and according to us, it should be treated as 8 if their contention is accepted), learned counsel for the respondents-medical colleges lead by Mr. K.P. Dandapanii submit that the interpretation given to the above proviso on behalf of the appellants is not correct and it has to be construed as 15% of the total sanctioned seats and not reckoning only out of management seats. Some statutes may be clear and some statutes may be ambiguous. The clear statutes have to be interpreted according to the plain language contained therein. Only in ambiguous statutes whole of the statute has to be read and interpreted having regard to the object and intendment thereof and at times invoking the theory of 'casus omissus'. But, here the statute is clear and unambiguous and the said statute has got to be given effect to and any interpretation of he government or private colleges is impermissible if it goes contrary to the plain and clear language of the statute. But, here the statute is clear and unambiguous and the said statute has got to be given effect to and any interpretation of he government or private colleges is impermissible if it goes contrary to the plain and clear language of the statute. The language in the above proviso is so clear and unambiguous and it leaves no doubt that the private self-financing colleges are entitled to earmark upto 15% and not exceeding the same reckoning their quota and their quota, i.e., the management quota, is only 50% as clearly mentioned in sub-section (2) of Section 3 of the Act. There is absolutely no scope whatsoever to interpret the said proviso as meaning 15% of the total seats. In view of the above, we hold unhesitatingly that the respondents-colleges have exceeded the NRI quota out of the management quota and they have earmarked more than their entitlement. They were only entitled to 8 seats out of 50 seats of the sanctioned strength of 100 seats. Hence, their actions are clearly illegal. 6. the other argument of Mr. Dandapani is that even if the appellants have got a case, they cannot be admitted now because of the expiry of the last date for admission, i.e., 30.9.2004. He strongly relies for this proposition on the judgment of the Supreme Court in Medical Council of India v. Madhu Singh & Ors. ((2002) 7 SCC 258). There cannot any denial of the legal position settled by the Supreme Court that the admissions cannot be made beyond the specified date i.e., 30th September of every year. But the said judgment was rendered in a context where admissions have been made after the said date mainly owing to the fault of the management and other factors. But the cases on hand are quite different from the case decided by the Supreme Court. If any fresh admission being made after 30.9.2004 certainly it is objectionable and against the legal principles stated by the Supreme court regarding the last date of admission. But, in the instant case, all the appellants have been admitted before 30.9.2004 - some in ordinary course by the managements themselves and others because of the court orders. They are not seeking admissions beyond 30.9.2004. But, in the instant case, all the appellants have been admitted before 30.9.2004 - some in ordinary course by the managements themselves and others because of the court orders. They are not seeking admissions beyond 30.9.2004. They are crying hoarse for proper compliance of the directives of the judgment in Academy of Medical Sciences case (supra) basing upon their rankings assigned in CEE and limiting the NRI quota to the statutorily permissible limit of o15& of the management quota which cannot exceed 8 out of 50 seats, if the total sanctioned strength is 100 in a private self-financing college. If a wrong interpretation has been made and that too deliberately by the respondents-colleges inspite of the plain and clear language of the statute and conferring undue favour on respondents-students under the guise of NRI quota, then the appellants cannot be made to suffer for the said illegal and arbitrary actions of the respondents-colleges. Hence, we dispose of these writ appeals as mentioned hereunder: (1) The Writ Appellants and writ petitioner's satisfied the conditions enumerated in clauses (i) to (v) in paragraph 64 of the judgment in Academy of Medical Sciences case (supra). (2) The NRI quota of 15% has to be carved out of and reckoned only out of the management quota which is 50% if the total sanctioned seats. (3) The respondents-college shall reckon the NRI quota as mentioned above and re-admit the appellants and writ-petitioner if they secured ranks above the permissible quota of NRI students. (4) Such NRI students who are in excess of their permissible limit, as interpreted above, have to go out and there also the respondents-colleges have to maintain strict adherence tot eh percentage of marks obtained by NRI students in their qualifying examinations and it is needless to mention that NRI students who obtained higher qualifying marks have to be preferred. The Writ Appeals and the Writ Petition are allowed to the extent indicated above. Time for compliance is one week from today. No costs.