ACADEMY OF MEDICAL SCIENCES Vs. REGINA M

JUDGEMENT

(1.) These appeals are directed against the judgment dated 27.9.2004 in W. P. (C) No. 26260/2004. Writ Appeal No. 1786/2004 is treated as the main appeal. That appeal is filed by two self financing medical colleges namely, Academy of Medical Sciences, Pariyaram and Cooperative Medical College, Kochi. Respondents 4 and 5 in the Writ Petition, hereinafter referred to as "the Appellants". The other appeals, except one, have been filed by the students who have been admitted by the said appellants to MBBS Course, against the seats in the Management Quota. The remaining appeal has been filed by the State.

(2.) The learned Single Judge as per the impugned judgment set aside the admission of students to the seats in Management Quota made by the appellants, having found that selection for such admission was not in conformity with the provisions contained in S.3(1) and 3(4) of Act 17 of 2004 and with Ext. P2 Government Order. It is in the above circumstances the managements, the selected candidates and the State have filed these appeals.

(3.) It is contended by the appellants in all these appeals that the learned Single Judge ought not to have interfered with the selection process as the appellants do not come within the definition of State or other authority or are not instrumentalities of the State. Therefore, their action could not have been subjected to judicial review under Art.226. The writ petitioners were not successful in substantiating before the learned Single Judge that there was functional, financial and administrative control over the appellants by Government, so that they can be termed as an authority under Art.12 of the Constitution of India to exercise the power vested in this Court for judicial review under Art.226. It is further contended that the writ petitioners have applied and participated in a selection process pursuant to the notifications issued for admission to the seats in Management Quota. Having participated in the selection process and having lost an opportunity to get selection, they could not have impugned the selection later. It is further contended that as S.3(4) of the said Act cannot be, given full effect during this year, because of the absence of test conducted by the consortium of self financing Medical Colleges, the only option left was to follow the list prepared by the Commissioner for Entrance Examinations and select the candidates for admission to the Management Quota, as permitted by Ext. P2 order issued in exercise of the power vested in Government, under S.12 of the Act. Ext. P2 has got a statutory flavour and without Ext. P2, S.3(4) of the Act providing procedure for admission to Management Quota cannot be implemented. It allows a selection process from among the candidates included in the list prepared by the Commissioner for Entrance Examinations, thereinafter referred to as the 'State Merit List' and applied to the respective colleges pursuant to the notifications. Ext. P2 was never challenged by the writ petitioners. The effect of the impugned judgment is that the management is deprived of the opportunity to select candidates in terms of Ext. P2 and the statutory mandate. It is further contended that based on such selection, 35 candidates each have been admitted and all these candidates have discontinued the courses they were attending in other colleges/ universities in or outside the State. If their selection is interfered with at this stage, it will have far reaching effects on their career. Therefore, equity demands that there shall not be any interference with such selection. Again, it is contended that the writ petitioners have not even impugned the selection process. If at all there is such contention for them, a selection can be impugned, successfully, only if it is shown that it was vitiated due to any illegality or procedural unfairness. There was no pleading to that effect in the Writ Petition. The management can evolve a selection process to weed out less meritorious incumbents, based on a set standard. Having not thus challenged the selection process in which they participated, the learned single Judge ought not to have set aside the selection and directed to conduct fresh selection in the manner indicated in the judgment. It is contended that the writ petitioners did not implead all the candidates who got selection as per Ext. P3 and P4 list and did not approach this Court in time. If they had been aggrieved by the selection process proposed by the appellants, they would have approached this Court immediately after the notification had been issued. It is further contended that the learned single Judge interfered with the selection process, on the basis that the appellants were discharging a public duty, applying the principle laid down in Unnikrishnan's case ( 1993 (1) SCC 645 ). But there was no such pleading in the Writ Petition. In the absence of such pleading, and having disabled the appellants to meet such pleading, selection process could not have been interfered with for that reason.