P FATHIMMA HANEENA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is a student who aspires for admission to medical colleges in Kerala during this year. She has appeared in the Common Entrance Test conducted by the Commissioner of Entrance Examinations of the Government of Kerala and is included as rank no. 1503 in the rank list prepared pursuant thereto. As is common knowledge, there are several Self-financing Medical Colleges in Kerala, the mode of admission to which is in a nebulous state for the past few years because of the dispute regarding seat sharing between the Government and the Managements of the Self-financing Medical Colleges. Six of the Self-Financing Medical Colleges in Kerala entered into Ext. P1 agreement with the Government regarding seat sharing with a fee pattern in excess of what has been fixed by the Fee Regulatory Committee appointed by the Government of Kerala under Section 6 of the Kerala Professional Colleges 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, 2006 (hereinafter referred to as Act 19 of 2006 ). The legality and validity of that agreement is under challenge before this Court in W. P (C) No. 21155/2008 filed by the petitioner herself. In that writ petition, an interim order has been passed directing that in the 35% management seats to be filled up as per the said agreement, pending approval of the agreement by the Supreme Court, for which approval the Government has already approached the Supreme Court, fees shall be collected only as per the fees prescribed by the Fee Regulatory Committee. Originally, for this year, the six medical colleges had decided to make admission to the management quota seats also from the rank list prepared and published by the Commissioner of Entrance Examinations in the Common Entrance Test conducted by the Government of Kerala. However, the 5th respondent through the 6th respondent, by a notification dated 5-7-2008 published in two Malayalam daily newspapers namely, 'the Kerala Kaumudi' and 'the Desabhimani', invited applications for admission to MBBS course in the six medical colleges mentioned above. Along with the application form, the prospectus for admission was to be issued. A copy of the prospectus for the admission is produced by the petitioner as Ext. P4 in the writ petition. As per the same, the selection for admission was to be made on the basis of marks obtained by the candidate for Physics, Chemistry and Biology in the qualifying examination and marks obtained in the entrance examination conducted by the 5th respondent Association apportioned in the ratio 50:50. In accordance with the prospectus, the respondents 5 and 6 have directed the candidates to appear for an entrance examination to be conducted on 27-7-2008. The validity of that examination is under challenge before me in this writ petition filed on 24-7-2008, on two grounds, viz. (1) the same is against the schedule prescribed as per the Medical Council of India Regulations as approved by Supreme Court of India in Mridul Dhar and another v. Union of India and others [ (2005) 2 SCC 65] and (2) the test so proposed does not satisfy the triple tests of being fair, transparent and non-exploitative as laid down by the Supreme Court in P. A. Inamdar v. State of Maharashtra, [ (2005)6 SCC 537].

(2.) THE petitioner contends that the Medical Council of India has, as early as on 25-2-2004, framed the Graduate Medical Education (Amendment) Regulations, 2004 laying down the time schedule for completion of admission process for first MBBS course in Appendix E thereof. This time schedule has been approved by the Supreme Court of India in Mridul Dhar's case (supra) and the Supreme Court has directed all concerned to strictly adhere to the time schedule so prescribed making it the responsibility of all concerned including the Chief Secretaries and Health Secretaries of each State/union Territory to ensure compliance with the said direction. The petitioner points out that as per that time schedule, the entrance examination for filling up seats to be filled up by the State Governments/institutions has to be conducted in the month of May each year and the results thereof have to be published by 15th of June. The first round of counselling/admission has to be over by 25th July. According to the petitioner, the entrance test slated for 27-7-2008 by respondents 5 and 6 is in violation of the time schedule approved by the Supreme Court of India and therefore no admission can be made based on a rank list prepared pursuant to the said entrance test. The petitioner would contend that the only other alternative available for the six medical colleges for this year is to make admissions from the rank list prepared by the Commissioner for Entrance Examinations of the Government of Kerala in accordance with the inter se merit of candidates therein.

(3.) SECONDLY, the petitioner contends that the entrance test conducted by respondents 5 and 6 does not satisfy the triple tests of being fair, transparent and non-exploitative. According to her, the 6th respondent has invited applications for admission by notification in only two Malayalam dailies named 'kerala Kaumudi' and 'desabhimani', which cannot be said to be papers having wide circulation all over Kerala. The Malayala Manorama, Mathrubhumi, Indian Express and the Hindu are having much wider circulation throughout Kerala in which the notification has not been published. The notification is published on 5-7-2008 fixing the last date for submitting applications as 15-7-2008. The notification does not mention as to the mode of conducting selection, not even that the applicants have to undergo a common entrance test. The notification prescribes different minimum qualifying marks in the qualifying examination for admission to the six different medical colleges, but the entrance test is common. It is only in the prospectus that the mode of selection is prescribed. Therein, the candidate is given liberty to choose only a maximum of three of the six colleges, to which colleges only the candidate would be considered for admission. She further submits that the admission procedure has not been supervised by the Admission Supervisory Committee appointed by the Government under Act 19 of 2006. According to the petitioner, as per the said Act, it is mandatory that the process of admission of students to unaided professional colleges or institutions have to be supervised by the Admission Supervisory Committee appointed under Section 4 of Act 19 of 2006. She submits that the Justice P. A. Mohammed Committee appointed as the Admission Supervisory Committee under the said Act has not been involved in the conduct of the test as was done last year as is evident from Ext. P3. This alone, according to the petitioner, would be sufficient to declare the test conducted by respondents 5 and 6 as invalid. The petitioner also refers to Exts. P5 and P6 advertisements dated 8-7-2008 and 18-7-2008 issued by one of the member colleges of the 5th respondent, namely, the Kannur Medical College, wherein different last dates for submitting applications have been mentioned as 15-7-2008 and 31-7-2008. In Ext. P5, it is stated that they have no agents for admission. Those advertisements do not refer to an admission procedure by any consortium or the 5th respondent. The contention is that for all the above reasons, the common entrance test proposed and conducted by respondents 5 and 6 does not fulfil the triple tests of being fair, transparent and non-exploitative, laid down by the Supreme Court in P. A. Inamdar's case (supra) and therefore, no admissions can be allowed to be made on the basis of that test. Therefore, the admission procedure has to be taken over by the State substituting its own procedure as laid down in P. A. Inamdar's case (supra), is the submission made by the petitioner.