SEN P A Vs. CO OPERATIVE MEDICAL COLLEGE

JUDGEMENT

(1.) This batch of cases relates to admissions into M.B.B.S. course for the academic year 2004-05 and involves interpretation of the proviso to Sub-section (4) of Section 3 of the Kerala Self-financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act, 2004 (hereinafter referred to as 'the Act'). The Writ Appeals are directed against the orders of the learned Single Judge dismissing their claims for admission into respondents-medical colleges which are self-financing colleges within the meaning of Section 2(j) of the Act. The Act came into force on 15.7.2004 on receipt of the assent of the Governor and then gazetted. The history leading to the enactment of the Act need not be gone into except in stating that the Act is purported to have been made pursuant to the observations of the Five Judge Constitution Bench of the Supreme Court in Islamic Academy of Education v. State of Karnataka (2003 (3) KLT (SC) (SN) 118 = (2003) 6 SCC 697). Of course, in the said judgment the Supreme Court said that whatever arrangements have been ordered in the said judgment were subject to a Parliamentary enactment. The subject of 'education' was in List II of Schedule VII, but, by virtue of the 42nd constitutional amendment the same was lifted and placed in List Ill-Concurrent List. Under Article 254 of the Indian Constitution, both the Parliament and State Legislatures are entitled to enact laws subject to the provisions stated therein. However, without going into further details it is suffice to state that the Act itself is questioned before the Supreme Court in W.P.(C) No. 374 of 2004 and also W.P.(C) No. 12 of 2005. Before the said Writ Petitions were filed the said Act also came up for interpretation before a Division Bench of this Court in W.A. Nos. 1786, 1789 of 2004 and batch. The Division Bench headed by Justice K.A. Abdul Gafoor rendered the judgment in Academy of Medical Sciences v. Regina reported in (2004 (3) KLT 628). The issue arose before the said Court related to S.3 of the Act pertaining to the validity of the rank list prepared for the management quota. The management quota is 50% of the sanctioned seats and the respondents-colleges even though entitled for conducting a separate common entrance test by a consortium chose to select the candidates for admission opting to common entrance examination rankings. Common Entrance Examination (hereinafter referred to as 'CEE') is conducted by the* Commissioner for Entrance Examination appointed by the Government. While in Government Medical Colleges the students are admitted to all the sanctioned seats basing upon the ranking in CEE and on payment of the fees prescribed by the Government, which is much lower to that of the self-financing colleges, self-financing colleges are now made eligible to have their quota to the extent of 50% of the sanctioned seats and also to levy the fees structure as fixed by the Committee constituted pursuant to the judgment in Islamic Education case (supra). The fees structure was the subject matter in another batch of cases in which a separate judgment is being rendered today. That is a question apart in these cases.

(2.) The learned Single Judge as also the Division Bench referred to above set aside the select list of the respondents-private colleges on the ground that it does not conform to the rankings of CEE and that the admissions were granted by pick and choose. The appellants in W.A. Nos. 2108 and 2225 of 2004 were admitted into M.B.B.S. course in the private medical colleges arrayed as respondents. But, their appointments were cancelled because of setting at naught the select list of the said colleges. The other Writ Appellants have paid fees and were provisionally admitted pursuant to the interim orders of the Court. The appellants in W.A. Nos. 2108 and 2225 of 2004 have been regularly admitted and paid their fees before 30.9.2004 which is the last date set and insofar as the other appellants are concerned, as already mentioned, have been admitted provisionally on their payment of fees which was pursuant to the orders of this Court. That was also before 30.9.2004. The judgment of this Court has been carried to the Supreme Court and initially status quo order was granted, but the same was vacated later and the appeals are still pending.

(3.) While disposing of the matters earlier, this Court in Academy of Medical Sciences case (supra) held in paragraph 64 as under: