Fathima Haneena P. v. State Of Kerala & Ors.

JUDGMENT

1. 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 sate 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 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 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 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 v. Union of India ((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 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 the that time schedule, the entrance examination for filling up seats to be filled up by the State Government/Institutions has to be conducted in the month of May each year and the results there of have to be published by 15th of June. The first round of counselling/admission has to be over by 25th July. According 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 submitting applications as 15-7-2008. The notification does not mention as to the mode of conducting selection, not even that the applications 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 prospects 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 ExtP3. 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 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 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 directive 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, 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 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 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 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 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 admission 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 ut and the 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.

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 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 Singh'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 timeframe 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 of admissions 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. Paras 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 bullets 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:

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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, 2004, laying down the time schedule for completion of admission process for first MBBS course. It is on the same lines as the a forequoted time schedule. Time schedule (Appendix E to the Regulations) reads as under:

APPENDIX E

THE SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS

FOR FIRST MBBS COURSE

Schedule for admission Seats filled up by the Central Gover-nment through All India Entrance Examination Seats filled up by the State Governments/institutions Conduct of Entrance Examination Month of May Month of May Declaration of results of qualifying exam entrance exam By 5th June By 15th June First round of counseling/admission To be over by 30th June To be over by 25th July last date for joining the allotted colleges and course Within 15days from the date of allotment of seats 31st July Second round of coun-selling for allotment of seats from waiting list To be over by 8 August Upto 28th August Last date for joining form candidates allotted seats in second round of counselling from the waiting list Within 15 days from the date of allotment of seat (seats vacant after 22ndAugust will be surrendered back to the States/colleges) 31st August. Commence of academic session 1st of August Last date up to which students can be admitted against vacancies arising due to any reason 30th September

11. 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:

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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 1.5th 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 counselling 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.

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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.

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.”

12. 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.

13. 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 admission in unaided medical colleges also to the maximum, which is what the Supreme Court repeatedly called for in all their decisions on the subject.

14. 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.

15. 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 contentions that the schedule is fixed only in the context of admission to All India quota has no legs to stand.

16. Now, I shall come to the next question as to whether for other reasons stated by the petitioner, the Common Entrance Test conducted by respondents 5 and 6 is unsustainable. Regarding the admission procedure to be followed by unaided educational institutions, the Supreme Court, in P.A Inamdar's case (supra) held thus in paragraphs 136 and 137.

“136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on the same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the course of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test (“CET” for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensurer the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralised counseling or, in other words, single-window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice and be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen.

137. Pai Foundation (T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481) has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefore subject to its being fair, transparent and non- exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non- exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly.”

(Emphasis supplied)

17. Going by the same, what I am called upon to decide is whether the Common Entrance Test conducted by respondents 5 and 6 satisfies the triple tests of being fair, transparent and non- exploitative.

18. In P.A Inamdar's case (supra) itself, the Supreme Court emphasised the necessity for the Central or State Governments to come out with a detailed and well though out legislation on the subject, in the following words:

“155. It is for the Central Government or for the State Government, in the absence of a Central legislation, to come out with a detailed well-though out legislation on the subject. Such a legislation is long awaited. The States must act towards this direction. The judicial wing of the State is called upon to act when the other two wings, the legislature and the executive, do not act. The earlier the Union of India and the State Governments act, the better it would be. The Committees regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint a competent authority in consonance with the observations made hereinabove. Needless to say, any decision taken by such Committees and by the Central or the State Governments, shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction”.

19. The State of Kerala did come out with such a legislation in the form of Act 19 of 2006. But, a Division Bench of this Court has no Lisie Medical & Educations Institutions v. State of Kerala (2007 (1) KLT 409) stuck down most of the substantial provisions of the same as unconstitutional. But one section of the Act, which is very much relevant for our purpose, namely, Section 4 thereof, is one of the provisions upheld by the Division Bench in paragraph 38 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. 119(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- exploitative 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 Judged 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 Examination, 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 contravension 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 recommended 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 of the Act dealing with the method of admission in professional colleges or institutions, the admissions are not 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)

20. Section 4 of the 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 Education Department (ex-officio) Member 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) The Commissioner for Entrance Examinations, Kerala (ex-officio) Member (vi) An Educational Expert belonging to the Scheduled Caste or Scheduled Tribe Community Members

(2) The Admission Supervisory Committee may adopt its own procedure for the conduct of its business.

(3) The terms and conditions of service of the Chairperson and the members of the Admission Supervisory Committee shall be as may be prescribed.

(4) Non person who is associated with any unaided professional college or institution shall be eligible for being a member of the Admission Supervisor Committee.

(5) A member of the Admission Supervisory Committee shall be removed, if he or she does any act, which in the opinion of the Government, is unbecoming of a member of the Committee. The mehiber so removed shall not be renominated to the Committee.

Provided that no such member shall be removed from the committee without giving him or her an opportunity to the Committee.

(6) The Admission Supervisory Committee shall supervise the 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.

(7) The Admission Supervisory Committee may hear complaints with regard to admission in contravention of the provisions contained herein. If the Admission Supervisory Committee after enquiry finds that there has been any violation of- the provisions for admission on the part of the unaided professional colleges or institutions it shall make appropriate recommendation to the Government for imposing a fine up to rupees ten lakhs and the Government may on receipt of such recommendation, fix the fine and collect the same in the case of each such violation or any other course of action as it deems fit and the amount to fixed together with interest thereon shall be recovered as if it were an arrear of public revenue due on land. The Admission Supervisory Committee may also 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. On the receipt of such communication, the University shall debar such candidates from appearing for any further examination and cancel the results of examinations already appeared for.

(8) The Admission Supervisory Committee may if satisfied that any unaided professional college or institution has violated any of the provisions of this Act, recommended to the University or statutory body for withdrawal of the affiliation or recognition of such college or institution or any other course of action it deems fit”

21. Going by the said Section and the decision of the Division Bench, the entire process of admission has to be mandatorily supervised by the Admission Supervisory Committee, the 2nd respondent herein, for ensuring that the same is fair, transparent and non- exploitative. Therefore, from the beginning of the admission process, at every stage, respondents 5 and 6 ought to have got approval of the Admission Supervisory Committee in respect of the same. In 2007-08, the Committee had issued Ext.P3 guidelines in the matter, which read thus:

“1. The private Self financing Professional colleges/Association may invite application for admission to different self financing courses. The application fee including cost of prospectus shall not exceed Rs 200/-. Wide publicity including advertisement in at least two Malayalam dailies having vide circulation shall be given at least two weeks before the last date to be fixed for receipt of application.

2. Application forms shall be made available from the College to the applicants in person or through post/courier on payment of the above application fee and there shall be facility to down load the application form from the Internet

3. The Colleges or Institutions shall publish on its website and on the notice board, the list of applications received and a rank list showing the rank obtained by each candidate in the CET conducted by the State Entrance Commissioner, within three days of the last date fixed for receipt of application. A copy of such rank list shall be forwarded to the Member Secretary, Admission Supervisory Committee, Ram Mohan Palace (old High Court Building), Emakulam also.

4. A separate list of applicants for NRI seats, in the order of their merit, based on the marks obtained in the qualifying examination shall be forwarded to the Committee. The name and address of the NRI applicants and his/her relation ship to the NRI shall also be specified in each case.

5. The process of admission shall be fair, transparent, merit based and non- exploitative.”

22. This year, although the 5th respondent has submitted a scheme, a prospectus and a copy of an agreement with the Government, there is nothing to show that the same was got approved by the Committee, although in Ext.R5(e), the Committee is stated to have recorded it. Counsel for the Committee states that the committee had decided only to record the same, since the Committee was not consulted while devising the admission procedure as was done last year, when the Committee was consulted at every stage. This time the Committee was not consulted at any stage of the admission process, particularly regarding the crucial stage of setting of the question paper and fixing the mode of valuation. That being so, there is clear violation of Section 4 of Act 19 of 2006, in conducting the impugned test, by respondents 5 and 6, which itself is sufficient to declare the procedure adopted by respondents 5 and 6 as invalid.

23. As I had stated while dealing with the necessity to adhere to the time schedule prescribed by the Supreme Court, the veiy delay in conducting the test would spell out lack of fairness and transparency. As far as the Common Entrance Test conducted by the State Government is concerned, the process starts in December/January. Sufficient time is given to the students to fill up the application forms and prepare for the test by announcing the dates in advance. Here, the 5th respondent in paragraph 7 of their counter affidavit states thus:

“7. It is submitted that the 5th respondent Association originally decides (sic) to give admission to the Management Quota from the rank list published by Common Entrance Test conducted by the Government of Kerala ………”

24. Therefore, conduct of a separate entrance test was not in their contemplation till they entered into Ext.R5(b) agreement with the Government on seat sharing on 17-6-2008. Thereafter, they suddenly, without consulting the 2nd respondent-Committee, in a hurry, prepared a scheme and prospectus and submitted the same along with the agreement before the admission Supervisory committee, who did not approve the same but only recorded it Therefore, the question paper also must have been prepared in haste because the date of test is 27-7-2006. The Committee is not taken into confidence either regarding the preparation of the question paper or the mode of valuation. Notification inviting application is published on 5-7-2008 in only two dailies, that too having limited circulation and not in leading dailies, in any case not in English dailies. One of the member, college publishes its own advertisement separately giving 31.7.2008 as the last date for submitting; applications, i.e after the date of proposed test. The notification specifically states that applications will not be sent by post In this connection it is pertinent to note that last year there were more than one writ petition before me complaining that application forms for admission to some of the unaided Medical Colleges were issued only to those who agreed to pay capitation fee. At least to obviate such a complaint application forms should have been issued by post to those who seeks the same. Another fool proof and less time consuming system would have been to make facility to download the application form from the Internet. The students were also not given sufficient time to prepare for the tesi In this connection, it is interesting to note Ext.R5(a) notification issued by the 6tl respondent, which reads thus:

“Application from eligible candidate are invited for admission to MBBS, 2008 -2009 against 35% of seats in the following member colleges of the Keral Private Medical College Management Association.

Qualification: Pass with Fifty percent marks in Higher Secondary examination of Kerala with Biology, Physics and Chemistry as optional subjects or examination recognized equivalent thereto. The minimum percentage of mark for Biology, Physics and Chemistry put together at the qualifying examination fixed by the college for admission is given against the name of the college concerned.

SI No. Name of Medical College Min.% of Marks for Phy. Che. and Bio. 1. Dr. Somervell Memorial C.S Medical College, Karakonam, TVPM 75% 2. Kannur Medical College, Anjarakandy, Mamba P.O, Kannur Dist 50% 3. Karuna Medical College, Vilayodi Chittur, Palakkad Dist 60% 4. MES Medical College, Penrithalmanna, Malappuram Dist 60%

5. Sree Gokulam Medical College Venjaramoodu, TVPM Dist. 50% 6. SUT Medical College, Vencode Thiruvananthapuram Dist 50%

Age:17 years as on 31-12-2008

The Application form and Prospective can be had by hand from 05/07/2008 from any of the above colleges on production of Demand Draft for Rs. 750/- (Rupees Seven hundred fifty only) drawn in favour of Secretary, Kerala Private | Medical College Management Association (KPMCMA) payable at SBT, Statue, Thiruvananthapuram. Application will not be sent by post Filled in applications I with documents shall be submitted as per instructions contained in clause 3.2 of the Prospectus”.

25. Although a Common Entrance Test is proposed to be conducted for all the six colleges together, separate minimum marks for the qualifying examinations are fixed for the six member colleges. The notification does not speak of a Common Entrance Test. Clause 3.2 of the prospectus reads thus:

“3.2 Submission of Application Form: A candidate can choose a maximum of three of the six colleges mentioned in clause 1.1 above and such choice shall be specifically stated in the relevant column in the Application form. Such candidates will be considered for selection for admission to the college/colleges of choice made in the application. The applications of candidates who write the name of more than three colleges in the Application Form will not be considered. So also the applications of candidates who do not possess the minimum marks at the qualifying examinations and or for optional subjects viz. Physics, Chemistry and Biology prescribed for the college concerned in Annexure I Series related to the college in the Prospectus will not be considered. All the columns in the Application form shall be filled in giving the correct information and details following the instructions in the prospectus. The Application form along with the following documents shall be submitted to any of the colleges of choice so as to reach the same to the addressee (colleges) on or before the last date fixed for receipt of applications in the admission notification issued by the Association. (For address of colleges see Annexure I Series)

a) Self attested copy of school record/copy of SSLC in proof of date of birth.

b) Self attested copy of mark list at the qualifying examination.

c) Self attested copy of pass certificate of the qualifying examination.

d) Self attested copy of eligibility/equivalency certificate obtained from the University concerned in Kerala by candidates who have passed the qualifying examination from authorities other than the State of Kerala\CBSC/ISCE.

e) Self attested copy of course and conduct certificate from the institution last attended.

A photo copy of the application along with copies of the above documents has to be submitted to the other college (s) of choice, if any”.

(Emphasis supplied)

26. If the candidate does not get admission to any of the three Colleges chosen by him/her, even if the candidate is higher in rank than those who have chosen the other colleges, he/she will not get admission. I am at a complete loss to understand how a common rank list can be drawn up in the Common Entrance test so conducted with the above parameters. Further the photograph of the candidate is not required to be furnished in the application, without which how can the 6th respondent ensure identification of the candidate in the examination hall? As per Ext P4 prospectus, the examination was to be held at selected centres at Thiruvananthapuram and Kozhikode. The counsel for the petitioner would submit that there was only one centre, which submission was not denied by counsel for respondents 5 and 6.

27. I am completely satisfied that such an admission procedure cannot certainly satisfy the triple tests of being fair, transparent and non -exploitative as contemplated by the Supreme Court Therefore, I have no hesitation to hold that the Common Entrance Test conducted by the respondents cannot be the basis for admission to any of the six Medical Colleges this year as proposed by them. Accordingly, I declare that the test conducted by respondents 5 and 6 on 27-7-2008 is not fair, transparent or merit bases and non- exploitative and therefore the six Medical Colleges who are members of the 5th respondent are not entitled to make any admission on the basis of the rank list prepared pursuant to the said test.

28. In P.A Inamdar's case (supra), the Supreme Court has held that “The admission procedure so adopted by a private institution or group of institutions fails to satisfy all or any of the triple tests indicated hereinabove, can be taken over by State substituting its own procedure”. Since, in the counter affidavit, the 5th respondent themselves had stated that they had originally decided to give admission to the management quota from the rank list published by Common Entrance Test conducted by the Government of Kerala, they shall now complete admissions to the 35% management quota also from the rank list published by the Commissioner for Entrance Examinations of the Government of Kerala in the Common Entrance Test conducted by him this year in accordance with the inter se merit of the candidates.

29. I also direct that subject to any future change in law, for coming years, the following requirements shall be strictly complied with by unaided medical colleges, who opt to conduct their own entrance test for selection of students for admission:

(a) The time schedule prescribed as per the Medical Council of India Regulations as approved by the Supreme Court of India in Mridul Dhar's case (supra) shall be strictly followed. If, for any reason, entrance test cannot be conducted within the said time schedule, admission shall be completed by admitting students from the rank list published by the Commissioner of Entrance Examinations of the Government of Kerala for the year, ensuring inter se merit of the candidates, subject to orders that may be issued by the Supreme Court of India, if any, in that regard.

(b) At every stage of the admission process, viz. issue of notification inviting applications, preparation of prospectus, issue of application foims, setting of question papers, deciding the method of valuation, publication of list of applicants, conduct of written test, preparation of rank list, counseling etc., approval from the Admission Supervisory Committee appointed under Section 4 of Act 19 of 2006 shall be mandatorily obtained, failure of doing which also would render such selection invalid.

(c) Notification inviting application shall contain all essential particulars and shall be published in all leading daily newspapers, both Malayalam and English, sufficiently early.

(d) Application forms shall be made available by post and courier also and candidates must be permitted to submit applications in forms downloaded from the Internet. The Government shall ensure that the colleges make available sufficient number of application forms through Public Information Officers of the Government of Kerala in each District Collectorate.

(e) After the last date fixed for submitting applications a list of applicants who have submitted valid applications, shall be published including in the Website.

(f) The results of the entrance test with marks obtained by each candidate and the rank list prepared shall also be similarly published, accessible to individual candidates.

(g) Separate lists of admitted candidates in each category shall be duly published, accessible to the candidates.

30. These directions are not exhaustive and in addition to the same, all directions issued by the Admission Supervisory Committee for ensuring a fair, transparent, merit based, non-exploitative admission procedure as contemplated in the decision of the Supreme Court India in P.A Inamdar's case shall also be strictly complied with, which, of course, shall be subject to judicial review. As nearly as possible, the conduct of the Common Entrance Test shall conform in form, procedure and substance with that conducted by the Commissioner of Entrance Examinations of the State of Kerala.

31. The Government shall also actively see that the colleges conduct the admission procedure as per the above directions, giving necessary assistance to the Admission Supervisory Committee, and if it is found that the admission procedure so adopted by any of the unaided institutions or group of institutions fails to satisfy the tests prescribed by. the Supreme Court of India as directed in paragraph 137 of P.A Inamdar's case (supra), the State shall take over the admission process substituting its own procedure.

32. The Writ Petition is allowed as above.