Dismissed

Dr.Betsy Varghese v. Admission Supervisory Committee and Fee Regulatory Committee

Kerala HC13 Oct 2021WP(C)/21348/2020

Case brief

AI extract

What is this about?

This writ petition sought to quash the Admission Supervisory Committee's order rejecting a request to regularise petitioners' past admissions. The court held the petition was not maintainable as the validity of the admissions was conclusively determined in a final judgment (WP(C) No. 3734 of 2016), barring relitigation under the principle of res judicata.

What did the court decide?

The writ petition is dismissed as it is not maintainable due to the operation of res judicata in light of the final judgment in WP(C) No. 3734 of 2016.

Dr.Betsy Varghese Vs Admission Supervisory… — Pension and Retirement Benefits | Kerala HC (2021)

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WP(C)No. 21348 of 2020

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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 A.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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WEDNESDAY, THE 13^TH DAY OF OCTOBER 2021 / 21TH ASWINA, 1943

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WP(C) NO. 21348 OF 2020

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PETITIONERS:

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1 DR.BETSY VARGHESE AGED 36 YEARS AASTHOTTAM, KUNDARA P.O.KOLLAM, KERALA, PIN-691 501.

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2 DR. ANZAR AZEEZ, AGED 40 YEARS HOUSE NO 71, GANAPATHI NAGAR, THAMARAKULAM BEACH, KOLLAM, KERALA, PIN-691 001.

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BY ADVS. O.A.NURIYA SRI.HARIS BEERAN

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RESPONDENTS:

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1 ADMISSION SUPERVISORY COMMITTEE & FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES OF KERALA, (REP BY ITS CHAIRMAN), PRASANTHI BUILDINGS. M.P. APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.

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2 KERALA UNIVERSITY OF HEALTH AND SCIENCES, REP BY ITS REGISTRAR, MEDICAL COLLEGE P.O. TRISSUR, KERALA, PIN-680 596.

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3 STATE OF KERALA, REP BY THE SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM, KERALA, PIN-695 001.

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WP(C)No. 21348 of 2020

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4 AZEEZIA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH, REP BY ITS PRINCIPAL, MEEYANOOR, KOLLAM, KERALA, PIN-691 537.

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5 NATIONAL MEDICAL COMMISSION, DADA DEV MANDIR ROAD, DWARAKA PHASE-1, POCKET 14, SECTOR 8 DWARAKA, NEW DELHI-110 077

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BY ADVS. SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES BY SR. GOVERNMENT PLEADER SRI.PREMCHAND R. NAIR R4 BY KURIAN GEORGE KANNANTHANAM (SR.) SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA SHRI.R.T.PRADEEP, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON 13.10.2021 DELIVERED THE FOLLOWING:

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WP(C)No. 21348 of 2020

“C.R.”

Mohammed Nias C.P. J

Challenging the decision of the Admission Supervisory Committee ('ASC' for short) rejecting the representation (Ext.P15) filed to regularise the admission of the petitioners in the 4^th respondent College, this writ petition is filed.

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The short facts necessary for deciding the writ petition are as follows:-

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The petitioners, after obtaining their MBBS degree had secured admission to the Post Graduate course of MS Orthopaedic and MD Anaesthesia in the 4^th respondent college for the academic year 2015-2016 based on the scores they obtained in the Karnataka Religious And Linguistic Minority Professional Colleges Entrance Examination, 2015. The ASC on account of the reason that the college did not obtain prior permission from them and also that no attempt was made by the college to ascertain whether there were suitable and qualified candidates from the entrance examinations conducted by the CEE or AIPGMEE, the tests approved by the Government of Kerala, rejected the admission given to the petitioners, which led them to challenge the same by filing WP(C)No.3734 of 2016, which came to be dismissed as per Ext.P20

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WP(C)No. 21348 of 2020

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judgment on 30.03.2016. The petitioners had also unsuccessfully challenged the order of the ASC approving the prospects of the college to the extent it stipulates its prior approval for admission for the admission for the students in the academic year 2015-2016.

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A Division Bench of this Court after hearing the

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petitioners, ASC, The Kerala University of Health Sciences, the State Government as well as the College found that the reasoning of the ASC that the admission granted to the petitioners did not satisfy the triple test of merit, transparency and fairness as laid down by the Hon'ble Supreme Court, was justified and that no permission was sought for admitting the petitioners, who did not qualify the KEAM or AIPGMEE, the tests approved in the State of Kerala, and that no intimation was granted to the ASC about the non-availability of candidates from the rank list of the Commissioner for Entrance Examination, or the All India PG Entrance Examination and held that there was no ground to interfere with the decision of ASC rejecting the approval of admission granted to the petitioners. Special Leave Petition (C)No.15164 of 2016 filed against the said judgment was withdrawn with liberty to move a review petition before this Court as seen from Ext.P21. A review was attempted with a delay of 946 days, the

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WP(C)No. 21348 of 2020

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same stood dismissed by Ext.P22 order dated 04.12.2019. The order in review was again challenged before the Hon'ble Supreme Court in Special Leave Petition (Civil) No.3692 of 2020, in which orders were passed on 17.07.2020 (Ext.P23), which is extracted hereunder:-

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“ Learned senior counsel appearing for the petitioners wants to withdraw these petitions and file a representation. Without commenting on the merits of the prayer, the special leave petitions are dismissed as withdrawn.”

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Accordingly, a representation was filed before the ASC marked as Ext.P26 seeking to regularise the admission of the petitioners, which was rejected by Ext.P27. The writ petition is filed for quashing Ext.P27, the order of the ASC and also for a direction to them to regularise the admissions of the petitioners.

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The Government has filed a counter affidavit

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stating that the petitioners initial admission itself was in violation of the conditions of the approved prospectus and that the petitioners are not qualified in the approved examination conducted and as such there is no merit in the contentions now raised by the petitioners.

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WP(C)No. 21348 of 2020

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The University has filed a statement in this writ petition pointing out that the petitioners were discharged from the institution in the year 2016 itself after the dismissal of the writ petition and therefore, there is no question of their admissions being regularised at this distance of time.

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Heard learned counsel for the petitioners Sri.Haris Beeran, Sri.R.T.Pradeep, learned Standing Counsel for the ASC, Sri. P.Sreekumar, learned Standing Counsel for the Kerala University of Health and Sciences, Sri.Kurian George Kannanthanam, learned counsel for the 4^th respondent, Sri.Titus Mani Vettom, learned counsel for the Medical Council of India as well as Sri.Premchand R. Nair, learned senior Government Pleader for the State.

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Sri.Haris Beeran, the learned counsel for the petitioners submits relying on the judgment in Amalgamated Coalfields Ltd. And another v. Janapada Sabha Chhindwara and another (AIR 64 SC 1013) that there is no res judicata since the question to be decided by the ASC is different from what was decided by this Court in Ext.P20 judgment. He submits that the admissions were not regularised only on the ground of not getting prior approval of the ASC which is no fault of the petitioner but that

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WP(C)No. 21348 of 2020

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of the college. He also submits that going by the consensual agreement entered into between the State Government and the 4^th respondent college, Ext.P7 as well as on account of Clause 9(2) of the Post Graduate Medical Education Regulations, 2000 the petitioners being qualified are entitled to the reliefs prayed for. The learned counsel for the petitioner at the end of the hearing on 4.10.2021 also sought two days time to file an argument note. We waited for one week and since it is not filed, we are pronouncing the judgment.

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We hold that the judgment in Amalgamated Coalfields Ltd. And another (supra) does not offer any assistance to the petitioners in as much as the said decision, dealing a tax matter found that the tax liability being different for different years, the appellants therein cannot be precluded from raising new contentions regarding the subsequent assessments for different years. The same is not the case here as the writ petition, which resulted in Ext.P20 judgment was one filed for regularising the admission and which was dismissed after hearing all the respondents. The present attempt is also to regularise the very same admissions made in the year 2015-2016 . The learned counsel also relied on the judgment of the Hon'ble Supreme Court marked

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WP(C)No. 21348 of 2020

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as Ext.P24 where the Hon'ble Supreme Court did not disturb the admission granted to a student holding that they were qualified and it was the mistake of the college therein with respect to the categorisation of the candidate therein under the Socially and Economically Backward Class (SEBC) category. The said order itself mentions that the same shall not be treated as a precedent and is made only in the facts of the case. This judgment also does not lend any help to the petitioners.

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The learned counsel also relies on the decision of the Hon'ble Supreme Court in Anakha K. & Ors v. The Admission and Fee Regulatory Committee for Medical Education in Kerala & ors. (Civil Appeal No. 2309 of 2021), which again found that the candidates therein were NEET qualified candidates and the disputes therein pertained to the submission of applications online as it was compulsory at that point of time. The Supreme Court found that the candidates being NEET qualified and having no other disqualification for their admission and further finding that there was no other candidates more meritorious than the appellants who were granted admission, permitted them to complete the BAMS course. The judgment also does not help the petitioners herein.

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WP(C)No. 21348 of 2020

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It has to be noticed that the petitioners, ASC, the University and the State are all bound by the inter-partes judgment, Ext.P20 which decided the question of validity of the admissions granted to the petitioners. In the absence of the said judgment being varied or modified by the Hon'ble Supreme Court, the ASC, bound by the said judgment, could not have considered the representation on merits let alone taking a decision contrary to the findings in Ext.P20 judgment, which had become final as aforesaid.

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In the instant case, we notice that the ASC could have rejected the representation without considering the contentions raised on merits. However, the ASC considered the representation on merits and rejected the same, though unnecessary. We hold that the challenge to the ASC order is not maintainable in view of the judgment in Ext.P20, which has become final and had conclusively determined the questions litigated. Since we hold that the above writ petition is not maintainable we are not considering the validity of the order passed by the ASC or considering the contentions raised on behalf of the petitioners that they were qualified and hence entitled to get the admissions regularised.

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WP(C)No. 21348 of 2020

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The principles enunciated by the Hon'ble

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Supreme Court in Nagabhushana v. State of Karnataka and Others [(2011) 3 SCC 408] is extracted:-

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“12. The principles of res judicata are of universal application as they are based on two age-old principles, namely. interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eademn causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause. This doctorine of res judicata is common to all civilised system of jurisprudence to the extent that a judgment after a proper trial by a court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.

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That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctorine of re judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of re judicata is not a technical doctorine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.”

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WP(C)No. 21348 of 2020

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14. In Nand Ram (Dead) Through Legal

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Representatives and others v. Jagdish Prasad (Dead) Through Legal Representative [(2020) 9 SCC 393] it was held that

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“a decision of a competent court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding.

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xxxxx

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When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the course of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded

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It is worthwhile to note the passage in

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Greenhalgh v. Mallard [(1947) 2 All ER 255]

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“ I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues

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which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of court to allow a new proceeding to be started in respect of them.”

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16. In Direct Recruit Class II Engineering

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Officers' Association v. State of Maharashtra and others [(1990) 2 SCC 715]

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“The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court.

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xxxx

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The decision in Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, further clarified the position by holding that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.

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The principles culled out from the above

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judgments clearly fortify our conclusion that the present writ petition is not maintainable. The validity of the admissions is the issue arising in the present case as well as in the earlier occasion and the same can give rise to only one cause of action. Ext.P23 order of the Hon'ble Supreme Court cannot be taken as modifying or varying Ext.P20 judgment, where the validity of the admission was directly and substantially in issue and decided against the petitioners.

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In the first round of litigation, that culminated in Ext.P20 judgment, the admission was invalidated because it was found by the ASC that the college had not demonstrated that there were no students available in Kerala and further that the prior permission from the ASC was not obtained to admit other students. Even if one were to go into the issue of eligibility of the petitioners to get admission to the college at this stage, it would be an exercise in futility since the finality of Ext.P20 judgment would stand in the way of allowing the reliefs prayed for by the petitioners. Allowing the claim of the petitioners for admission to the college at this belated stage would tantamount to ignoring Ext.P20 judgment that has already attained finality.

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We have no hesitation to hold that the prayer sought in the writ petition is clearly barred by the principle of res judicata and constructive res judicata as the identity of the subject matter is one and the same. Ext.P27 order of the ASC warrants no interference.

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In the result the writ petition fails and it is dismissed.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR, JUDGE

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Sd/-

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MOHAMMED NIAS C.P., JUDGE

dlk/8.10.2021

APPENDIX OF WP(C) 21348/2020

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PETITIONERS EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE MBBS DEGREE CERTIFICATE PERTAINING TO PETITIONER NO 1 DATED 12.10.2010
EXHIBIT P2	TRUE COPY OF THE MBBS DEGREE CERTIFICATE PERTAINING TO PETITIONER NO 2 DATED 25.3.2015
EXHIBIT P3	TRUE COPY OF SCORE/RANK CARD OF 1ST PETITIONER IN KARNATAKA RELIGIOUS AND LINGUISTIC MINORITY PROFESSIONAL COLLEGES ASSOCIATION (KRLMPCA) ENTRANCE EXAMINATION DATED NIL
EXHIBIT P4	TRUE COPY OF SCORE/RANK CARD OF 2ND PETITIONER IN KARNATAKA RELIGIOUS AND LINGUISTIC MINORITY PROFESSIONAL COLLEGES ASSOCIATION (KRLMPCA) ENTRANCE EXAMINATION DATED NIL
EXHIBIT P5	TRUE COPY OF THE FEES PAID BY THE 1ST PETITIONER TO 4TH RESPONDENT MEDICAL COLLEGE
EXHIBIT P5 (A)	TRUE COPY OF THE FEES PAID BY THE 2ND PETITIONER TO 4TH RESPONDENT MEDICAL COLLEGE
EXHIBIT P6	TRUE COPY OF THE GOVERNMENT ORDER REGARDING SEAT SHARING BETWEEN GOVERNMENT AND SELF FINANCING MEDICAL INSTITUTIONS DATED 5.2.2015
EXHIBIT P7	TRUE COPY OF THE CONSENSUAL AGREEMENT ENTERED INTO BETWEEN THE SATE OF KERALA AND 4TH RESPONDENT COLLEGE DATED 7.5.2015
EXHIBIT P8	TRUE COPY OF THE POST GRADUATE MEDICAL EDUCATION REGULATIONS 2000, AS AMENDED UP TO MAY 2018 DATED NIL
EXHIBIT P9	TRUE COPY OF PROSPECTUS OF THE 4TH RESPONDENT MEDICAL COLLEGE FOR ADMISSION TO POST GRADUATE MEDICAL MD/MS COURSES 2015 DATED 2.6.2014
EXHIBIT P10	TRUE COPY OF APPROVAL ORDER OF ADMISSION SUPERVISORY COMMITTEE ISSUED TO 4TH RESPONDENT COLLEGE DATED 13.5.2015
EXHIBIT P11	TRUE COPY OF THE DETAILS OF APPLICATIONS RECEIVED BY

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4TH RESPONDENT COLLEGE FOR PG 2015 DATED NIL

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EXHIBIT P12	TRUE COPY OF THE NEWS PAPER ADVERTISEMENT PUBLISHED BY 4TH RESPONDENT COLLEGE IN DECCAN CHRONICLE DATED 13.5.2015
EXHIBIT P13	TRUE COPY OF LIST OF FINAL ALLOTMENT AND SPOT ADMISSION PUBLISHED BY 4TH RESPONDENT COLLEGE DATED 8.6.2015
EXHIBIT P14	TRUE COPY OF THE ORDER ISSUED BY ADMISSION SUPERVISORY COMMITTEE TO 4TH RESPONDENT COLLEGE DATED 18.11.2015
EXHIBIT P15	TRUE COPY OF ADDITIONAL APPROVAL ORDER ISSUED BY ADMISSION SUPERVISORY COMMITTEE TO 4TH RESPONDENT COLLEGE DATED 25.11.2105
EXHIBIT P16	TRUE COPY OF APPROVAL ORDER ISSUED BY ADMISSION SUPERVISORY COMMITTEE TO PUSHPAGIRI COLLEGE OF DENTAL SCIENCES DATED 13.11.2015
EXHIBIT P17	TRUE COPY OF ORDER ISSUED BY ADMISSION SUPERVISORY COMMITTEE TO AZEEZIA COLLEGE OF DENTAL SCIENCES AND RESEARCH DATED 4.9.2015
EXHIBIT P18	TRUE COPY OF THE KEALA PROFESSIONAL COLLEGE 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 19 OF 2006 DATED NIL
EXHIBIT P19	TRUE COPY OF KERALA MEDICAL EDUCATION REGULATION AND CONTROL OF ADMISSION TO PRIVATE MEDICAL EDUCATIONAL INSTITUTIONS ACT 15 OF 2017 DATED NIL
EXHIBIT P20	TRUE COPY OF JUDGMENT IN WPC NO 3734 OF 2016 DATED 30.3.2016 OF THIS HON'BLE COURT
EXHIBIT P21	TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT OF INDIA IN SLP (C) NO 15164/2016 DATED 29.7.2016
EXHIBIT P22	TRUE COPY OF ORDER IN R.P NO 1030/2018 IN WPC NO 3734 OF 2016 DATED.4.12.2019
EXHIBIT P23	TRUE COPY OF ORDER PASSED BY THE HON'BLE SUPREME

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	COURT IN SLP (C) DIARY NO 3692/2020 DATED 17.2.2020
EXHIBIT P24	TRUE COPY OF ORDER PASSED BY THE HON'BLE SUPREME COURT IN A CIVIL APPEAL NO 5892/2019 DATED 26.7.2019
EXHIBIT P25	TRUE COPY OF REQUEST LETTER FILED BY THE PETITIONERS TO 4TH RESPONDENT COLLEGE DATED 19.2.2019
EXHIBIT P25 (A)	TRUE COPY OF REPLY RECEIVED BY PETITIONERS FROM 4TH RESPONDENT COLLEGE TO THEIR EXHIBIT P25 REQUEST DATED 18.9.2020
EXHIBIT P26	TRUE COPY OF REPRESENTATION FILED BY THE PETITIONERS TO THE CHAIRMAN OF ASC DATED 6.3.2020
EXHIBIT P27	TRUE COPY OF THE ORDER ISSUED BY ASC TO 4TH RESPONDENT COLLEGE REJECTING THE ADMISSIONS OF THE PETITIONERS TO MEDICAL PG 2015 DATED 25.8.2020
EXHIBIT P28	TRUE COPY OF LETTER ISSUED BY BOARD OF GOVERNORS FORMED IN SUPERSESSION OF THE MEDIAL COUNCIL OF INDIA TO 4TH RESPONDENT COLLEGE DATED 18.9.2020
EXHIBIT P29	TRUE COPY OF CERTIFICATE OF KARNATAKA RELIGIOUS AND LINGUISTIC MINORITY PROFESSIONAL COLLEGES ASSOCIATION DATED NIL

Dr.Betsy Varghese v. Admission Supervisory Committee and Fee Regulatory Committee

Case brief

What is this about?

What did the court decide?

Dr.Betsy Varghese v. Admission Supervisory Committee and Fee Regulatory Committee

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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