Dismissed

The Chairman v. State of Kerala

Kerala HC11 Aug 2016WP(C)/25203/2016

Case brief

AI extract

What is this about?

The petitioner challenged the Director's allotment of students after the agreed cut-off date. The Court held that the petitioner failed to get the agreement approved under Clause 12 before execution, making the challenge devoid of merit as the Committee's modified cut-off date was binding.

What did the court decide?

The writ petition challenging the allotment made by the 2nd respondent after the cut-off date was dismissed; the petitioner was found to have failed to obtain necessary committee approval for the agre

The Chairman Vs State of Kerala — Education and Admissions | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938 WP(C).No. 25203 of 2016 (A)

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PETITIONER:

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THE CHAIRMAN

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SREE KRISHNA COLLEGE OF PHARMACY AND RESEARCH CENTRE, NEAR RAILWAY STATION, PARASSALA, THIRUVANANTHAPURAM.

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BY ADV. SRI.GEORGE POONTHOTTAM

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RESPONDENT(S):

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STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM 695 001.

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LBS CENTRE FOR SCIENCE & TECHNOLOGY NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM 695 001. REPRESENTED BY THE DIRECTOR.

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ADDL.R3 IMPLEADED:

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ADDL.R3: THE ADMISSION SUPERVISORY COMMITTEE, REPRESENTED BY THE CHAIRMAN, TC-15/1553-4, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPRUAM - 695 014. (IS IMPLEADED AS PER ORDER DATED 8.8.2016 IN I.A.No.12661/2016.)

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R1 BY SR. GOVERNMENT PLEADER SRI BIJOY CHANDRAN R2 BY ADV. SMT.K.K.RAZIYA, SC, LBS CENTRE ADDL.R3 BY SMT.MARY BENJAMIN (SC)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 25203 of 2016 (A)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 13.6.2016 BETWEEN THE PETITIONER AND THE STATE GOVERNMENT

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RESPONDENT(S)' EXHIBITS

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EXT.R2(A): COPY OF APPROVAL ORDER DT.27.5.2016.

TRUE COPY

P.S.TO JUDGE

dsn

P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.

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W.P.(C)No.25203 OF 2016

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-------------------------------------------------DATED THIS THE 11^th DAY OF AUGUST, 2016

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JUDGMENT

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P.R.RAMACHANDRA MENON, J .

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The petitioner-Management has approached this Court mainly seeking to challenge the course and proceedings pursued by the 2^nd respondent allotting more students for the Pharmacy Course on 24.7.2016, which is contrary to the mandate of Clause 9 of the agreement executed between the petitioner and the Government, copy of which has been produced as Ext.P1.

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The petitioner/Institution is conducting various courses in Pharmacy Sector; such as B.Pharm, M.Pharm, Pharm D., etc. For the academic year 2016-17, admittedly an agreement has been executed between the petitioner and the Government, as borne by Ext.P1 agreement dated 13.6.2016. As per the terms of the said agreement, 50% seats are to be filed up by Government sponsored candidates in the 'merit quota' and the rest is under the Management quota. It is pointed out that, there is absolutely no difference between the fee payable by the students in the two

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different segments, except in the case of NRI seats, to the extent it is permitted. The grievance projected by the petitioner is that, in Clause 9 of Ext.P1 agreement it was clearly stipulated that, the cut off date for allotment of seats under the Government merit quota for the year 2016 shall be '15.7.2016' or the date of the first allotment of candidates by the Director of LBS Centre, whichever was later. The said clause further stipulates that the Management concerned shall be entitled to fill the seats still remaining unfilled and that the Government shall not make any claim over such seats after the cut off date. It is also mentioned that the forfeited vacancies shall not be brought forward to the succeeding years for compensation.

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The first allotment in the instant case was made only on '19.7.2016' and according to the petitioner, 17 candidates were sponsored, leaving 13 seats vacant in Government segment. By virtue of the terms of agreement, particularly clause 9, the petitioner was entitled to fill up the said remaining 13 seats and it was accordingly that admissions were made. But, thereafter, the 2^nd respondent allotted some more candidates on

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24.7.2016, which is per se wrong and unsustainable in all

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respects and hence the Writ Petition, with the following prayers:

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“(i) Issue a writ declaring that the allotment made by the 2^nd respondent contrary to the stipulations contained in Ext.P1 is illegal and not binding on the petitioner;

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(ii) Issue a writ directing the 2^nd respondent to cancel the second allotment made contrary to the stipulations in Ext.P1;

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(iii) Pass an order restraining the 2^nd respondent from allotting students contrary to the terms in the agreement between the Government and Management.”

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When the matter came up for consideration before this Court earlier, instructions were sought for from the 2^nd respondent. This Court also required the petitioner to get the Admission Supervisory Committee impleaded in the Writ Petition, pursuant to which I.A.No.12661/2016 was filed by the petitioner which was allowed as per order dated 8.8.2016. The 2^nd respondent has filed a statement pointing out that the idea and understanding of the petitioner is thoroughly wrong and misconceived. Though the cut off date was initially fixed as '15.7.2016', the University concerned wrote a letter to the

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Government on 13.5.2016, pointing out various facts and circumstances and in the course of further proceedings, the Prospectus and the Agreement entered into between the Consortium/Association and the Government in relation to the Pharmacy Course 2016-17, was approved by the additional 3^rd respondent Committee as per order dated 27.5.2016 in respect of 30 member colleges.

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It is true that the petitioner is not a member of the above Association, as put forth by the learned counsel for the petitioner, who hence thought it fit and proper to have entered into separate agreement as borne by Ext.P1. Para.3 of the approval order, copy of which has been produced as Ext.R2(a) along with the statement filed by the 2^nd respondent reads as follows:

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“3. In clause 9 of agreement the cut off date is fixed as 15.07.2016. But as per the communication number 938/AC.H/KUHS/2016(1) dated 13.05.2016, the Registrar of KUHS has informed the Secretary to Government, Health Department, that the cut off date of admission for Pharmacy Course is 15.08.2016. There is a difference of one month. Therefore, the cut off date for LBS allotment is rescheduled as 31^st July, 2016. The

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LBS, Director should be informed of this rescheduled date, which is different from the Agreement. This is necessary to avoid the 50% B.Pharm Government seats falling vacant. This power is exercised by the ASC under clause 12 of the Agreement.”

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From the above, it is clear that approval was given by the Committee, taking note of the circumstances pointed out by the University, as reflected from the letter dated 13.5.2016 addressed to the Government pointing out that the cut off date for admission for Pharmacy Course was '15.8.2016'. Since there was a difference by one month, the cut off date for 'LBS allotment' was scheduled as '31.8.2016'. It was accordingly, that the LBS was directed to inform the rescheduled date, it being different from the agreement executed between the Consortium and the Government, with a view to ensure that 50% B.Pharm Government seats shall not go vacant under any circumstance. Reference was also made to Clause 12 of the agreement which conferred the power upon the Committee in this regard.

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Coming to the stand taken by the 2^nd respondent, it is pointed out that the cut off date is not liable to be reckoned as 15.7.2016 and it should be 15.8.2016. In the said circumstance,

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approval given by the Committee to the agreement executed between the Consortium and the Government and the principle in respect of the time schedule is liable to be applied with equal force in the case of the petitioner as well. The time schedule fixed by the Committee in Para.11 of Ext. R2(a) order will throw more light in this regard, which hence is reproduced below:

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Sl.No.	Description	Date
01	Date of issue of applications	27/05/2016
02	Last date of receipt of application	30/06/2016
03	Date of publication of 1^strank list	01/07/2016
04	Date of 1^stallotment	02/07/2016
05	Last date of joining the 1^stalloted candidates	12/07/2016
06	Date of 2^ndallotment	15/07/2016
	Last date of joining the 2^ndalloted
07	candidates	23/07/2016
08	Last date of allotment by LBS	31/07/2016
09	Date of commencement of classes	01/08/2016
	Last date upto which candidates
10	can be admitted/joined against vacancies arising due to any reason	15/08/2016

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The learned counsel appearing for the 2^nd respondent points out that, even in the case of the petitioner herein, Clause 9 of Ext.P1 agreement does not give any unfettered right to the petitioner in view of 'Clause 12', which fairly supports that the aforesaid consensual agreement which is sought to be relied on

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by the petitioner shall be submitted before the Admission Supervisory Committee and the Fee Regulatory Committee Constituted by the State Government and that it shall be subject to their approval. The question is whether Ext.P1 has been approved in toto by the Committee as aforesaid.

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The learned counsel for the petitioner points out that, absolutely no intimation was ever sent to the petitioner at any point of time, after submitting Ext.P1 for approval. The learned counsel further points out that, even if there is no approval, nothing prevents the petitioner from proceeding with further steps so as to effect admissions. Reliance is sought to be placed on the decision rendered by the Apex Court in T.M.A.Pai Foundation v. State Of Karnataka (2002 (8) SCC 481) and the subsequent ruling rendered by the Apex Court in P.A.Inamdar v. State of Maharashtra (2005 (6) SCC 537) .

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The learned counsel submits that the dictum laid down by the Apex Court in T.M.A. Pai's case is to the effect that the Court has recognised the right of the Managements to establish educational institutions, however subject to the rider to ensure that merit is

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not ignored. The Apex Court has also made it clear that, there are several ways and means to ensure that merit is always given due weightage and one of such methods is by providing appropriate provisions either by the University or by the Government to have reservation of students on merit rating to be accommodated from the list prepared by the Governmental authorities in this regard.

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The learned counsel submits that the consensual agreement came to the scene for the first time based on such observations made by the Apex Court and there is no dispute that the merit is to be recognized. It is accordingly, that Ext.P1 agreement has been executed. The learned Standing Counsel appearing for the additional 3^rd respondent submits with reference to the scheme of the Statute (Act 19 of 2006) that wide powers have been conferred upon the Committee to ensure transparency in the process of admission, collection of fees and to prevent capitation fees. In so far as the petitioner places reliance on Ext.P1 agreement, the said agreement has to be read in toto and the different clauses cannot be isolated and the unpleasant provisions cannot be excluded to have taken only the rest. By

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virtue of 'Clause 12' of the Agreement, approval of the Committee was mandatory and the petitioner has not chosen to produce a copy of the approval order.

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With regard to the factual position, the learned Standing Counsel points out that, even according to the petitioner, the last date for allotment was '15.7.2016' as given in Clause 9 of Ext.P1 agreement in respect of merit seats. But the agreement itself was produced for approval only much later, on 26.7.2016. The Committee confronted the petitioner then and there, asking explanation for the delay in this regard and also as to the futile course of action, as the date was already over. Immediately, the petitioner rushed to this Court thereafter, i.e., on 28.7.2016, by filing the present Writ Petition.

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After hearing both the sides, this Court finds that there is considerable force in the submissions made from the part of the 2^nd respondent and the additional 3^rd respondent. This Court finds that there is absolutely no fault or lapse on the part of the Committee. The lapse is on the part of the petitioner in having not chosen to get Ext.P1 agreement approved in terms of 'Clause

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12' so as to give effect to Clause 9 with reference to the cut off date.

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In the above circumstances, this Court finds that the Writ Petition is devoid of any merit. Interference is declined and the Writ Petition is dismissed accordingly.

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Sd/-

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P.R.RAMACHANDRA MENON ,

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JUDGE

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Sd/- ANIL K.NARENDRAN, JUDGE

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dsn

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True copy