Dismissed

Kunhitharuvai Memorial Charitable Trust v. State of Kerala

Kerala HC6 Apr 2018RP/2/2018

Case brief

AI extract

What is this about?

In this review petition, the High Court of Kerala examined requests to set aside a Division Bench judgment upholding portions of the Kerala Medical Education Act, 2017 and sitting on related fee regularization orders. The Court found no error apparent on the face of the record justifying review, dismissing the petitions and upholding the earlier proceedings.

What did the court decide?

Review petitions dismissed; no error apparent on the face of the record found to necessitate review.

Kunhitharuvai Memorial Charitable Trust Vs State of… — Education and Admissions | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

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THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940

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RP.No. 2 of 2018 IN WPC. 30032/2017

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AGAINST THE JUDGMENT IN WP(C) 30032/2017 of HIGH COURT OF KERALA

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REVIEW PETITIONER(S)/WRIT PETITIONER NOS. 1 AND 2:

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1 KUNHITHARUVAI MEMORIAL CHARITABLE TRUST

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MANASSERY, KOZHIKODE, KERALA, PIN-673 602, REPRESENTED BY THE EXECUTIVE TRUSTEE, DR.K.M.NAVAS.

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2 DR.K.M.NAVAS.

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EXECUTIVE TRUSTEE,KUNHITHARUVAI MEMORIAL CHARITABLE TRUST MANASSERY, KOZHIKODE, KERALA, PIN-673 602.

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BY ADV.SRI.GEORGE POONTHOTTAM

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RESPONDENT(S)RESPONDENTS 1 AND 2:

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STATE OF KERALA,

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REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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THE ADMISSION AND FEE REGULATORY COMMITTEE

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REPRESENTED BY THE CHAIRMAN, PRASANTHI BUILDINGS, M.V. APPAN ROAD, VAZHUTHACAD, THIRUVANANTHAPURAM-695 001.

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R1 BY ADVOCATE GENERAL C.P. SUDHAKARA PRASAD

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R1 BY SR. GOVERNMENT PLEADER SRI. A.J. VARGHESE

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R2 BY SMT.MARY BENJAMIN, SC,

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ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 06-04-2018 ALONG WITH R.P. NO. 58 OF 2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K. SURENDRA MOHAN & ANNIE JOHN, JJ.

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R.P. No. 2 of 2018 in W.P.(C) No. 30032 of 2017 & R.P. No. 58 of 2018 in W.P.(C) No. 31079 of 2017

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Dated this the 6^th day of April, 2018

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ORDER

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Surendra Mohan, J.

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The petitioners seek review of the common

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judgment dated 2.11.2017 of this Court disposing of a number of writ petitions filed challenging the Constitutional validity of the Kerala Medical Education (Regulation and Control of Admissions to Private Medical Educational Institutions) Act, 2017 (hereinafter referred to as 'Act 15 of 2017' for short). The petitioners in W.P.(C) No. 30032 of 2017 and W.P.(C) No. 31079 of 2017 are the review petitioners.

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The petitioners are Self Financing Medical

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Colleges. As per the judgment sought to be reviewed, the writ

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R.P.2/2018 in WPC.30032/2017 & con.case. 2

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petitions were substantially allowed, after an elaborate consideration of the various contentions raised and the legal aspects involved. The judgment sought to be reviewed was rendered by a Bench headed by the then Honourable Chief Justice and another Learned Judge of this Court. The matter has been posted before us being the regular Bench hearing such matters as per the roster, pursuant to orders issued by the Honourable Chief Justice. We notice that the matter was initially posted before another Bench to which Raja Vijayaraghavan, J, who was a party to the judgment sought to be reviewed, was also a party. As per order dated 14.3.2018 passed by the said Bench, the matter was placed before the Honourable Chief Justice who has posted the cases before us.

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A already noticed above, what was under challenge in the writ petitions was the Constitutional validity of various provisions of Act 15 of 2017. The Division Bench after considering the various issues, found that the challenge

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R.P.2/2018 in WPC.30032/2017 & con.case. 3

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was justified and in paragraph 101 thereof, the following

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reliefs have been granted:

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“101. Thus to conclude:

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(a) The provisions of Section 3(2) of the 2017 Act, that is, the Constitution of ten members' committee has to be reconsidered by the State in the light of the observations made in this judgment.

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(b) The provision of quorum as provided under Section 5(3) of the 2017 Act is held to be clearly ultra vires the nature of the duties and functions of the Committee.

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(c) The provisions of Section 8(1)(a) read with Section 11 of the 2017 Act is not ultra vires, but the power and function of the Committee has to be read as interpreted by the Apex Court in the case of Modern Dental College & Research Centre (supra). It means that the institution would propose the fee and the Committee would fix the same by deleting elements of profiteering and capitation fee but leaving reasonable surplus.

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(d) The provisions of Section 8(1)(b) in regard to the provisional fixation of fee is wholly ultra vires. But, the provisional fee as already fixed is already a fait accompli and being already a fait accompli, no order is required to be passed in regard to the provisional fee already fixed. The Committee should finalize the fee immediately, if not

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R.P.2/2018 in WPC.30032/2017 & con.case. 4

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already done, within the prescribed period, following the procedure.

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(e) The provisions of Section 8(4) and in particular Section 8(4)(b), 8(4)(d) and 8(4)(e), for the reasons given above, cannot be held to be ultra vires.

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(f) Section 9(2) of the 2017 Act is also not ultra vires and has to be read in the manner indicated in this judgment. (g) Section 11 of the 2017 Act read with Section 8(1)(a) cannot be said to be unworkable in the absence of Rules prescribed, for the reasons given above in this judgment. (h) Section 17 of the 2017 Act is declared ultra vires and unenforceable.

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(i) Section 19 of the 2017 Act insofar as it seeks to validate the provisional fee fixed as on 13.07.2017 is clearly ultra vires the powers of the legislature, but as indicated above, it is a fait accompli.

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(j) The directions regarding the time schedule as stated above have to be scrupulously followed to avoid any further chaos being created in future years.”

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Accordingly, the writ petitions were partially allowed.

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According to Adv. George Poonthottam who

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appears for the petitioner in R.P. No. 2 of 2018, this Court has found as per Clause (b) above that the provision in the Act

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R.P.2/2018 in WPC.30032/2017 & con.case. 5

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fixing the quorum was ultra vires and has set aside the same. The consequence thereof is that the Committee that is constituted under Section 3, comprising of ten members would have to sit and decide every issue, together. In other words, in the absence of any provision stipulating a quorum, the Committee could function only with all its members being present.

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The second contention put forward is that during the pendency of the writ petitions, the Admission and Fee Regulatory Committee passed a final order fixing the fee with respect to the College of the review petitioner. The said order was produced as Ext.P6 in the writ petition and challenged. However, there is no mention in the judgment regarding the said order. In view of the finding that the stipulation regarding the quorum was ultravires, it followed that Ext.P6 was unsustainable and liable to be set aside. In spite of the above, Ext.P6 was not set aside. The omission to do so,

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R.P.2/2018 in WPC.30032/2017 & con.case. 6

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according to the learned counsel, is an error apparent on the

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face of the record. Therefore, the counsel seeks review of the judgment, on the above two grounds.

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The petitioner in R.P No. 58 of 2018 attacks the judgment on a different ground. According to the counsel,

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during the pendency of the proceedings before this Court, a provisional fee of Rs. 11 Lakhs had been fixed. As per an order issued by the Apex Court, an amount of Rs.5 Lakhs was ordered to be paid and the students were to furnish Bank Guarantee for the balance amount of Rs. 6 Lakhs. Accordingly, the learned counsel submits that, Bank Guarantees have been provided. However, the judgment sought to be reviewed does not say anything about how the amount secured by the Bank Guarantees furnished by the students is to be appropriated. The above, it is submitted, is an error apparent on the face of the record and a review of the judgment is necessary.

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R.P.2/2018 in WPC.30032/2017 & con.case. 7

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Per contra, the learned Advocate General who

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appears for the State contends that no review of the judgment is permissible for the reason that some of the reliefs prayed for have not been granted. The proper remedy of the review petitioners is to challenge the judgment by preferring an appeal.

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According to Adv. Mary Benjamin who appears for the Admission and Fee Regulatory Committee, the judgment sought to be reviewed has directed the Committee as per clause (d) of paragraph 101 of the judgment to finalize the fee immediately, if not already done, within the prescribed period, following the procedure. It is contended that, the said direction takes care of the situation that is pointed out as an omission by the review petitioners. It is also pointed out that pursuant to the direction, orders have been passed by the Committee and that, such orders have been made the subject

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R.P.2/2018 in WPC.30032/2017 & con.case. 8

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matter of challenge before this Court by the respective Colleges in a batch of writ petitions that is pending. According to the learned counsel, the review petitioner in R.P. No. 58 of 2018 has also challenged the order passed by the Admission and Fee Regulatory Committee in another writ petition that is pending. For the above reason, there are absolutely no grounds to review the judgment, as sought for.

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Heard. We have been taken through the judgment that is sought to be reviewed elaborately. We notice that the thrust of the contentions advanced before the Division Bench was against the validity of Act 15 of 2017. The same was originally promulgated as an Ordinance and was later made into an Act of the Legislature. The Act provided for constitution of the Admission and Fee Regulatory Committee as per Section 3, comprising of ten members. Section 5 stipulated that the quorum for a meeting shall be four. This Court found that, the Committee was unwieldy and directed

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R.P.2/2018 in WPC.30032/2017 & con.case. 9

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the State to reconsider the Constitution of the Committee.

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The stipulation regarding quorum was held to be unsustainable for the reason that, it was necessary for the same set of members to consider a matter on all the occasions that the same is posted before the Committee. A change in the identity of the members who hear the matter at every posting date and the ultimate passing of final orders by a different set of members, would vitiate the entire proceedings, according to the judgment sought to be reviewed. Therefore, the provision stipulating quorum has been set aside. This Court has thereafter directed the Admission and Fee Regulatory Committee to pass orders finalizing the fee, if not already done.

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Though it is true that, Ext.P6, that was under challenge, has not been set aside by the Division Bench, we are not satisfied that the omission to do so is an error apparent on the face of the record necessitating a review of the judgment

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R.P.2/2018 in WPC.30032/2017 & con.case. 10

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as sought for. The fact that no relief has been granted in respect of Ext.P6 only leads to the conclusion that the same was declined. If the denial of the said relief was not justified, the remedy of the person aggrieved is to challenge the same in appeal. A contention that the Admission and Fee Regulatory Committee would have to function as a single unit with all its members present, is also put forward to contend that Ext.P6 order is unsustainable. The said contention also cannot be a ground to review the judgment.

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With respect to the contention that no stipulation has been made as to how the amount of Rs.6 Lakhs secured by the student by furnishing Bank Guarantee should be utilized is concerned, we find that there is a direction in the judgment to the Admission and Fee Regulatory Committee to finalize the fee. The amount that was directed to be paid by the student at that time was only a provisional fee. When the fee is finally determined and fixed by the

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R.P.2/2018 in WPC.30032/2017 & con.case. 11

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Admission and Fee Regulatory Committee, the fees so fixed is the actual amount payable by the student. Therefore, what remains is only a matter of adjusting the payment already made, between the student and the Colleges.

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In the above view of the matter, we do not find any error apparent on the face of the record or other sufficient grounds, to review the judgment as sought for. The Review Petitions are accordingly dismissed.

Sd/-

K. SURENDRA MOHAN

JUDGE

Sd/ANNIE JOHN JUDGE

Kunhitharuvai Memorial Charitable Trust v. State of Kerala

Case brief

What is this about?

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Kunhitharuvai Memorial Charitable Trust v. State of Kerala

Case brief

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