Karnataka High Court
Dr Shaan T V Antony vs State Of Karnataka on 24 October, 2024
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WP No. 9317 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION NO. 9317 OF 2022 (EDN-RES)
BETWEEN:
DR SHAAN T V ANTONY,
D/O T V ANTONY,
AGED ABOUT 35 YEARS,
R/AT TRIKKUKARAN HOUSE
OLLUR POST, THRISSUR,
KERALA - 680 306.
...PETITIONER
(BY SMT. AKKAMAHADEVI HIREMATH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF MEDICAL EDUCATION,
6TH FLOOR, 4TH GATE,
Digitally signed by KORLAHALLI
BHARATHIDEVIKRISHNACHARYA
Location: HIGH COURT OF
M.S BUILDING,
KARNATAKA
BENGALURU - 560 001,
REPRESENTED BY ITS
SECRETARY.
2. THE NATIONAL MEDICAL COMMISSION,
POCKET-14, SECTOR-8,
DWARAKA PHASE 1,
NEW DELHI -110 077.
REPRESENTED BY THE
EXECUTIVE SECRETARY.
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WP No. 9317 of 2022
3. THE DIRECTORATE OF
MEDICAL EDUCATION,
REPRESENTED BY ITS
DIRECTOR,
ANAND RAO CIRCLE,
BENGALURU-560 001.
4. KARNATAKA EXAMINATION AUTHORITY,
SAMPIGE ROAD, 18TH CROSS,
MALLESWARAM,
BENGALURU-560 012,
REPRESENTED BY ITS
EXECUTIVE DIRECTOR.
5. SHRIDEVI INSTITUTE OF MEDICAL
SCIENCES AND RESEARCH HOSPITAL,
NH 4, SIRA ROAD,
TUMAKURU - 572 106,
REPRESENTED BY ITS DEAN.
...RESPONDENTS
(BY SRI.VIKAS ROJIPURA, AGA FOR R1 AND R3,
SRI. N. KHETTY, ADVOCATE FOR R2,
SRI. N.K. RAMESH, ADVOCATE FOR R4,
R5 IS SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A
WRIT OF CEERTIORARI, QUASHING THE IMPUGNED
ENDORSEMENT DATED 04.05.2022 IN NO. ED / KEA / LE SHA-
3 / CR-16 /22-23, ISSUED BY THE 4TH RESPONDENT
PRODUCED AS ANNEXURE - K AND ETC.,
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN
and
HON'BLE MR JUSTICE UMESH M ADIGA
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WP No. 9317 of 2022
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE ANU SIVARAMAN)
This writ petition is filed seeking for the following reliefs:
a) A Writ of Certiorari, quashing the impugned
Endorsement dated 04-05-2022 in No. ED / KEA /Le Sha-3
/ CR-16 /22-23, issued by the 4th respondent produced as
Annexure - K.
B. A Writ of mandamus, directing the 4th respondent to
refund the amount of Rs.67,15,500/- ( Rupees Sixty Seven
Lakhs Fifteen Thousand Five Hundred Only) paid towards
course fee.
C. To hold and declare that the petitioner is entitled to the
seat in MS OBG in any of the other available and vacant MS
OBG seats in other colleges at the time of counselling, when
she was given the non existent seat in the Shridevi Medical
College, and
D. A direction to the 4th and the 5th respondents to pay Rs.
67,15, 500/- ( Rupees Sixty Seven Lakhs Fifteen Thousand
Five Hundred Only) as damages to the petitioner.
E. To direct that henceforth the entire process of the sage
of counselling in the MOP UP round and stray round be
converted to Online Counselling, and
F. To direct that henceforth after conclusion of all rounds
including the MOP UP round and stray round online, a
window of a certain number of days be provided thereafter,
say one week or two weeks, for the purpose of resolving
any incidental issues or wrongful actions of the authorities.
colleges are candidates, so as to avoid a fait accompli the
name of the last date of admissions, and.
G. To direct an enquiry to be held into the aforementioned
illegalities by the KEA and fix the responsibility on the
concerned officials for initiating further action against them
in accordance with law and to direct the recovery of the
damages amount from the officials personally.
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H. Grant such other relief/s that this Hon'ble Court may
deem fit in the facts and circumstances of the matter.
2. Heard learned counsel for the petitioner, learned
Government Advocate for respondent Nos.1 and 3, learned
counsel appearing for respondent No.2 - The National Medical
Commission, and learned counsel for respondent No.4.
3. Though notice has been served on the 5th
respondent, there is no appearance for the said respondent.
4. It is submitted by learned counsel for the petitioner
that the petitioner was an applicant for PG NEET for the year
2021-22 in NRI quota and that the Mop-Up round of counseling
was conducted on 28th April 2022. It is contended that the
seat matrix was not made available by the KEA, the details of
the seats and the status of permission and recognition were not
made available to the candidates at the time of the Mop-Up
round of counseling.
5. It is submitted that at the time of Mop-Up round of
counseling, the MS seat in OBG was offered in the 5th
respondent - Institution and that the petitioner had accepted
the seat on the bonafide impression that it could be a
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recognized seat and she had also paid the required fee of
Rs.67,15,500/- through Demand Drafts as produced at
Annexure - D1. However, it is submitted that immediately on
exiting the counseling hall the petitioner made enquiries and
came to know that MS-OBG course was not recognized and it
was not noted in the website of the college as a course offered
by the college. It is submitted that on being made aware of the
fact that there is no recognition for the course in question, the
petitioner submitted Annexure - G, letter, on 30.04.2022
seeking cancellation of the admission and refund of her fees. It
is submitted that even thereafter, though requests were made
before the KEA as well as the Director seeking to refund of the
fees and return of her original documents, the same was not
considered by either the Directorate or the KEA. The learned
counsel submits that the original documents of the petitioner
came to be returned pursuant to interim orders passed by this
Court but the fees paid by her have not been refunded.
6. A statement of objections has been placed on
record by fourth respondent - Karnataka Examination
Authority. It is submitted that the petitioner had participated in
the off-line Mop-Up round of counseling and has selected a seat
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in MS-OBG in Shridevi Institute of Medical Sciences and
Research Hospital and had paid the prescribed fees of
Rs.67,15,500/- through Demand Drafts. However, as on
30.04.2022, she did not report to the college and she gave a
representation to the fourth respondent - Karnataka
Examination Authority to cancel her admission and for refund of
her fees. Annexure - K endorsement dated 04.05.2022 was
issued on the said representation, pointing out that she is not
entitled for refund of the fees and she is also liable to pay a
penalty of Rs.15,00,000/-. It is further submitted that the
specific aspects are been clear in Cl.12.4 and 13.5 of the
information Brochure for admission for the year 2021-22 and
that the responsibility of the KEA is limited to conduct of
Centralised Counseling, which includes Registration, document
verification, counseling, allotment of seat and issue of
Admission Order.
7. It is further contended that as regards the status of
the seat, whether it is a permitted or recognised seat and the
consequences of selecting a permitted seat, it is to be clarified
by respondent Nos.1, 2, 3 and 5 and that the 4th respondent
only publishes the seat matrix as made available by respondent
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Nos.1 and 3. It is further contended that in the Mop-Up round,
the seat matrix as furnished by respondent Nos.1 and 3 is
displayed in the counseling hall and the students who
participated have to choose the seat and the college at their
own will and volition. It is stated that once the seat is taken
and the fee is paid, the cancellation of such admission can be
only on forfeiture of the entire fee paid and on payment of
penalty of Rs.15,00,000/-. In support of the said contention,
the learned counsel places reliance on Sub Rule (3) of Rule 15
of Karnataka Conduct of Entrance Test for Selection and
admission to Post Graduate Medical and Dental degree and
Diploma Courses (Amendment) Rules, 2019. It is therefore
contended that the prayer sought for cannot be allowed.
8. The petitioner has preferred re-joinder to the
written submission of the fourth respondent as well as to the
statement of objections. It is specifically contended by the
petitioner that the seat matrix was not published in the website
prior to the Mop-Up round of counseling. It is contended that
the Mop-Up round of counseling was conducted off-line and the
status of the seats, i.e., specifically whether the seat offered to
the petitioner was a recognized seat or even a permitted seat
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was not made available to the candidates at the time of the
Mop-Up counseling or at any point of time prior there to on the
website. It is therefore contended that it is on the bonafide
impression that the seat offered was a recognized NRI seat and
that the petitioner had made the payment of the fees and
immediately on coming to know that it is not so, she had
submitted representation seeking the cancellation of the
admission and refund of the fees.
9. The learned counsel appearing for respondent No.2
- The National Medical Commission submits that from a perusal
of the material produced along with the writ petition at
Annexure - F as also the pleadings and the materials produced
along with the rejoinder filed by the petitioner, it is clear that
the status of the MS-OBG NRI seat in the fifth respondent -
Institution, which was offered to the petitioner in the Mop-Up
round of counseling is not available on the website of the
Karnataka Examination Authority or even that of the institution.
It is submitted that the status of the seat was only a permitted
seat and recognition had not yet been granted in the relevant
academic year. It is submitted that in case the details of the
status of the seat was made available to the aspirants for the
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seats then the conditions in the prospectus as well as the
provisions of Rule 15(3) of the amendment Rules could have
been made applicable. However, in the absence of the status
of the seats being made known to the candidates, it is
contended that it may not be a proper exercise to forfeit the
entire fees paid by the candidates as also to require payment of
penalty. Learned counsel submits that Annexure-P1 regulation
by the MCI specifically warrants such disclosure.
10. The learned Government Advocate would contend
that the seat matrix had been made available at the time of the
Mop-Up counseling at the respective centers and that the
petitioner had accepted the seat and made the payment of fees
and was therefore liable to forfeit the amount as provided in
the prospectus.
11. Having considered the contention advanced on all
sides, we see that it is the specific case of the petitioner that
the status of the seat in question, which she had accepted in
the Mop-Up round of counseling was not made available to the
candidates in the website of the KEA or in any manner by which
the petitioner would have known that the seat in question was
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only the permitted seat and not a recognized seat. This aspect
of the matter has not been denied by either the KEA or the
NMC or the Government in these proceedings.
12. The provisions of 15(3) of the Karnataka Conduct of
Entrance Test for Selection and admission to Post Graduate
Medical and Dental degree and Diploma Courses (Amendment)
Rules, 2019 reads as follows:
"Any cancellation or surrender of seats after the mop up round shall be
made in person only to the Director, Directorate of Medical Education,
Karnataka with a penalty of Rs.15,00,000/- (Rupees fifteen lakhs only)
in case of Medical Clinical Degree or Diploma Courses and
Rs.5,00,000/- (Rupees five lakhs only) in case of Dental Degree or
Diploma Courses and forfeiture of fees paid before the last date of
admission as notified. Further, they will be ineligible for further rounds
of admission including names list admission".
13. Having considering the contentions advanced and
the submissions made across by the Bar, we notice that the
Post Graduate permission letter uploaded in the Website of the
fifth respondent - Institution as evident from Annexure - G3
does not include the seat, which is offered to the petitioner i.e.
MS OBG. Further, it is clear from the submissions made by
learned counsel appearing for the 2nd respondent that the
status of the seat was not made available in the KEA website
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either. This aspect is specifically pleaded by the petitioner
without any specific denial by any of the respondents. It is
clear that Annexure - P1 regulation of the Medical Council of
India specifically warrants such disclosures. In the above factual
situation and in view of the fact that the seat, which was sought
to be opted by the petitioner in the Mop-Up round of counseling
was an NRI seat, we are of the opinion that the contention
raised that the attempt of the petitioner was to block the seat
cannot be accepted. In view of the fact that the status of the
seat was not made known to the petitioner at the time of
participation in the Mop-Up round of counseling, we are of the
opinion that the contention that she has to forfeit the entire
fees paid by her and pay further amount of Rs.15,00,000/- as
penalty cannot be accepted. In the facts and circumstances of
the case, we are of the opinion that the petitioner is entitled to
succeed in the writ petition.
14. In the above view of the matter, we pass the
following:
(i) The impugned Endorsement dated 04.05.2022
in No. ED/KEA/Le sha-3/CR-16/22-23, issued
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by the 4th respondent produced at Annexure -
K is set aside.
(ii) The 4th respondent is directed to refund the
amount of Rs.67,15,500/- paid towards the
course fee to the petitioner within a period of
three weeks from the date of receipt of a copy
of this judgment.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
AG
