Sheeja.T.R vs The Chairman Srisankara Dental ...
2021 Latest Caselaw 20427 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                  &
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
        FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                          WA NO. 634 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 33243/2019 OF HIGH COURT OF KERALA
APPELLANT/S:

    1       SHEEJA.T.R.,
            THAZHATHETHIL HOUSE,ARANGOTTUKARA P.O.,
            THRISSUR,PIN CODE-679 532.

    2       ANUSHA S.W.,
            PAVARA VEEDU,KAKKAVILA P.O., UCHAKKADA,
            THIRUVANANTHAPURAM, PIN CODE-695 506.

    3       SUFINA SALIM,
            S.S.VILLA,LAKSHMI PURAM,POOLANTHARA,SANTHIGIRI P.O.,
            'THIRUVANANTHAPURAM,PIN CODE-695 589.

    4       LAKSHMI M.G.,
            MURALI SADANAM,PERUMPUZHA P.O.,
            KOLLAM, PIN CODE-691 504.

    5       SRUTHI BAIJU,
            POOVELIL HOUSE,PLAVILA,ATHIYANNOOR,THANNIMOODU P.O.,
            THIRUVANANTHAPURAM,PIN CODE-695 123.

    6       ALEENA JOY,
            THAIPPADATH HOUSE,KOLARIKKAL ROAD,
            SOUTH CHITTOOR,ERNAKULAM,PIN CODE-682 027.

    7       AMINA SAHEED,
            PANAYIL VEEDU,AKKAL P.O.,KARINGANOOR,
            KOLLAM, PIN CODE-691 516.

    8       SALMA SHEREEF,
            SHEREENA MANZIL,KARALIKONAM,ARKKANNOOR(P.O.),
            KOLLAM DISTRICT,PIN CODE-691 533.
    9       RESHMA SAJJANAN,
            LEKSHMI NIVAS,RAMU VILAKAM,VAKKOM,
            THIRUVANANTHAPURAM,PIN CODE-695 308.
 W.A.No.634 of 2021
                             2

    10    AMEER S.,
          S/O.SALIM,A B S HOUSE,OONNANPARA,
          CHERUVALA, PIN-695 608.

    11    JEETHU J.L.,
          CHILAMBIL,THOTTAKKADU,KARAVANAM P.O.,
          THIRUVANANTHAPURAM,PIN CODE-695 605.

    12    APARNA S.CHANDRAN,
          T.C.21/825(1),APOARNA BHAVAN,NEDUMCADU,
          KARAMANA P.O.,THIRUVANANTHAPURAM,.PIN-695 002.

    13    ANJANA B.SURESH,
          KUMAR BHAVANAM,ANJAMANGALAM,
          KARAKONAM.,PIN CODE-695 504.

    14    STEPHEENA THOMAS,
          PALLATHUSSERY (H),OCAHNTHURUTH P.O.,
          ERNAKULAM DISTRICT,PIN CODE-682 508.

          BY ADVS.
          C.UNNIKRISHNAN (KOLLAM)
          ANANDA PADMANABHAN
          UTHARA A.S
          SREEDEVI S.
          MAHESH CHANDRAN
          VIJAYKRISHNAN S. MENON


RESPONDENT/S:

    1     THE CHAIRMAN SRISANKARA DENTAL COLLEGE
          AKATHUMURI,VENNICODE P.O.,VARKALA,
          THIRUVANANTHAPURAM- PIN NO.695 318.

    2     STATE OF KERALA,
          REPRESENTED BY PRINCIPAL SECRETARY,
          HEALTH AND FAMILY WELFARE DEPARTMENT,
          SECRETARIAT,THIRUVANANTHAPURAM,PIN NO.695 001.

    3     COMMISSIONER FOR ENTRANCE EXAMINATIONS,
          THIRUVANANTHAPURAM,PIN NO.695 001.

    4     ANITHA JOSE,
          VADAKKEDATHU HOUSE,PANNIMATTOM P.O.,
          THODUPUZHA, IDUKKI DISTRICT,PIN-690 503.
 W.A.No.634 of 2021
                             3

    5     SHAHANAS A.,
          BISMILLAH HOUSE,ELIPPAKULAM P.O.,
          PALLICKAL (VIA), ALAPPUZHA-690 503.

    6     AKASH RAJ,
          VENAD HOUSE,ELAKMON P.O.,
          AYIROOR,VARKALA-695 310.

    7     RAJENDU R.,
          RAJENDU BHAVANAM,.BHOOTHAKULAM P.O.,
          KOLLAM,PIN CODE-691 302.

    8     ABHIRAMI,
          T.C.21/1043,NR BHAVAN,NEDUMCAD,KARAMANA P.O,
          THIRUVANANTHAPURAM,PIN NO.695 002.

    9     KIRAN P.V.,
          VENATTUKIZHAKKATHIL,CHERUTHANA P.O.,
          ALAPPUZHA DISTRICT-690 517.

    10    SHAMINA SHAJAHAN,
          TC 35/914,PUTHEN ROAD JN.,VALLAKKADAVU P.O.,
          THIRUVANANTHAPURAM-695 008.

    11    KRISHNA PRASENAN,
          KOOTTANIKKAL HOUSE,MYLAKKADU P.O.,
          KOLLAM.PIN NO-691 571.

    12    ARDRA R.S.,
          RAAS COTTAGE,PONGANADU P.O.,
          KILIMANOOR,TRIVANDRUM,PIN-695 601.

    13    NANDANA B.S.,
          NANDAVANAM HOUSE,NADUVANNUR POST,
          KOZHIKODE DISTRICT-673 614.

    14    DHANYASREE B.M.,
          MANI BHAVAN,MAVARTHALAKONAM,
          NALANCHIRA P.O., TRIVANDRUM-695 015.

    15    ALEENA JIMMI,
          ANLIN,TC 13/661(4),MIRANDA JUNCTION,
          VANCHIYOOR P.O.,696 035.

    16    ASIYA ANSARI,
          SHAREEFA MANZIL,M.O.WARD,
          ALAPPUZHA, PIN-688 001.
 W.A.No.634 of 2021
                                    4



    17       AMRUTHA K.S.,
             KARAVATTE HOUSE,PONGANAMKADU,
             THRISSUR-680 028.

    18       ANJANA T.VINOD,
             THAIPARAMBIL, AYMANAM P.O.,
             KOTTAYAM,PIN NO-686 015.

    19       MANESHA JOSHI,
             AKKARAVILA VEEDU,EATHIYIL,NEDUMPARAMBU P.O.,
             ALAMCODE-695 102.

    20       ARYA RAJAN,
             PULICKAL HOUSE,PAZHANGANAD,
             KIZHAKKAMBALAM P.O., ERNAKULAM-683 562.

    21       RAHUL MISHRA,
             PRANAVAN,KAROOR,AMBALAPUZHA,
             ALAPUZHA DISTRICT-688 561.

    22       SONA J.PARVATHY,
             SATHYMAHAL,PALACHIRA P.O.,
             VARKALA,THIRUVANANTHAPURAM-695 143.

    23       SHABEENA JABEEN P.C.,
             PICHEN CHEERATH HOUSE,OTTATHARA,
             KODUR P.O., MALAPPURAM-676 504.

             SRI.KURIAN GEORGE KANNANTHANAM, SR GP FOR R1
             ADV.SRI.TONY GEORGE KANNANTHANAM
             ADV.SRI.P.M.SANEER
             SRI.K.P.HARISH, SR GP FOR R2 & R3


      THIS    WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
01.10.2021,     THE    COURT   ON   THE    SAME       DAY    DELIVERED    THE
FOLLOWING:
 W.A.No.634 of 2021
                                 5




                           JUDGMENT

Dated this the 1st day of October, 2021

Shaji P. Chaly, J.

The appeal is preferred by respondents 10 to 14 and 28 to 36

in W.P.(C)No.33243 of 2019 challenging the judgment of the

learned Single Judge dated 8.3.2021 whereby the learned single

Judge allowed the writ petition filed by the Chairman of Sri

Sankara Dental College and declared that the writ petitioner is

obliged to give fee concession as per Exhibit P1 Government

Order, G.O.(Rt)No.2497/2016/H&FWD, dated 6.9.2016, only to 20

candidates and further that the writ petitioner is entitled to

collect the full fee from the remaining 14 candidates included in

Exhibit P7 list by the office of the Commissioner for Entrance

Examinations, Thiruvananthapuram in KEAM 2016 for the period

from the year 2016-2017 onwards. Accordingly, the Commissioner

for Entrance Examinations was directed to provide to the writ

petitioner the name of 20 students, who are eligible for fee

concession and instruct the remaining 14 ineligible candidates in

Exhibit P7 list to remit annual fee @ Rs.2,10,000/- from the year of

admission till the completion of the course. The second W.A.No.634 of 2021

respondent was also directed that since the academic year and the

course of the students are coming to an end by 31.03.2021 to

comply with the directions at the earliest and at any rate within a

period of two weeks. It is thus challenging the legality and

correctness, some of the students have come up in appeal. The

basic facts for the disposal of the appeal are as follows:

2. The management's association including the writ

petitioner had entered into a seat sharing arrangement for

admission with the State Government for the year 2016 in respect

to the BDS course. As per the agreement there was a condition

that 50% of the total seats would be Government quota and

within that 50%, 14% (7 seats) would be provided for BPL

candidates at a reduced fee of Rs.23,000/- and another 26% (13

seats) would be provided for SEBC students at an annual fee of

Rs.44,000/-. Thus according to the writ petitioner, the total

number of candidates eligible for fee concession was 20 and the

fee payable by the rest of the Government quota candidates was

Rs.2,10,000/-. However, since the college did not get sufficient

candidates in the management quota, writ petitioner requested

the Commissioner for entrance examinations to make allotments

to 35 seats in management quota also. Accordingly the W.A.No.634 of 2021

Commissioner for Entrance Examinations notified the seats for

spot allotment specifying that the fees would be Rs.2,10,000/-.

Thus the Commissioner made a total allotment of 85 candidates

including the students admitted in the spot admission. Matters

being so, after more than a year of allotment, the Commissioner

notified a list of 34 candidates eligible for fee concession.

However, according to the petitioner the fee concession was

available only for 20 candidates. Anyhow after the list was

notified by the Commissioner for Entrance Examinations the

candidates were not paying the fee. Therefore, the writ petitioner

moved the Commissioner and the Commissioner said that the unit

of reservation so far as BPL and SEBC candidates are concerned, is

85 and not 50 for apportioning the fee concession. The contention

put forth by the writ petitioner was that the said view adopted by

the Commissioner was fundamentally wrong and the writ

petitioner was liable to give fee concession to 20 candidates alone,

and others were liable to pay full Government fee of Rs.2,10,000/-.

It was thus challenging Exhibit P7 impugned order passed by the

Commissioner for Entrance Examinations, the writ petition was

filed.

3. The learned single Judge after taking into account the W.A.No.634 of 2021

pros and cons of the matter and the conditions contained in the

agreement executed by the management's association and the

Government, came to a conclusion that altogether only 20

candidates are entitled to fee concession and the list prepared by

the Commissioner for Entrance Examinations namely Exhibit P7,

providing concession to 34 students cannot be sustained. The

paramount contention advanced in the writ appeal by the

appellants is that the learned single Judge was not right in holding

that only 20 students are entitled to fee concession when 85 seats

were filled up by the Government from its list since the

management was unable to fill up the seats earmarked to it as per

the agreement executed by and between the parties. It was also

pointed out that the mandatory reservation available to SEBC or

BPL students is based on their respective mark satisfying all pre-

requisite conditions of Non Creamy Layer and those communities

enlisted as SEBC or income criteria to BPL. Therefore, according to

the appellants, after merger of 35 management seats to State

merit pool, the management cannot de-reserve such number of

seats to impose fees @ Rs.2,10,000/- since the management lost

control over such seats irrevocably and it was in that context that

spot admission was made by the Commissioner for Entrance W.A.No.634 of 2021

Examinations. It was also pointed out that the impugned

judgment was passed without hearing students who are arrayed as

respondents 3 to 36 and therefore, the students could not point

out the legal aspects in respect of the reservation available and in

that view of the matter, the appeal has to be considered re-

appreciating the entire facts and circumstances involved in the

subject issue.

4. We have heard Sri.C.Unnikrishnan (Kollam), learned

counsel for the appellants and Senior Advocate Sri.Kurian George

Kannanthanam for the writ petitioner assisted by Adv.P.M.Saneer

and perused the pleadings and the materials on record.

5. The subject issue basically revolves around the agreement

executed by and between the management's association of dental

colleges and the State Government. Some of the provisions of the

agreement incorporated in Exhibit P1 Government Order dated

6.9.2016 would enable us to arrive at a logical conclusion. The

abstract of the said Government Order clearly specifies that it is in

regard to the Medical Education Service - BDS Admission 2016-

2017 in the member colleges of all Kerala Self Financing Dental

College Management Consortium and sanction according to the

same. The name of the writ petitioner appears in the said W.A.No.634 of 2021

Government Order at serial No.13 ie. Sri Sankara Dental College.

Clause (1) of the agreement shows that 50% of the total seats in

the member colleges will be filled up by the member colleges as

allotted by the Commissioner for Entrance Examinations. From

the list prepared by the Commissioner for Entrance Examinations

who have qualified in the Kerala Engineering Agriculture Medical

Entrance Examination 2016 (KEAM 2016) in accordance with merit

and reservation principles followed by the Government from time

to time subject to clause (2) below. Clause (2) specifies that

whereas the member colleges has minority status 30% seats out of

the above 50% seats (15 seats out of 100 seats) will be filled up by

the member colleges from the list prepared by the Commissioner

for Entrance Examinations by the students belonging to the

minority community which established the college based on their

inter se merit. It is further specified in clause (3) that the

Commissioner for Entrance Examinations shall furnish the list of

the students to be admitted in the member colleges and the

member colleges shall admit the students specified in the list.

6. Clause (7) of the agreement states that the member

colleges agreed to collect annual fees at the following

concessional rates from the students admitted under the 50% W.A.No.634 of 2021

Government merit quota during the entire course period:

"a. 14% of the candidates from among those allotted by the Commissioner for Entrance Examinations in each institution coming under BPL families as per Kerala State norms irrespective of rank or category need only pay an annual tuition of Rs.23,000 (Rupees Twenty Three Thousand only). If enough number of candidates belonging to BPL category as above are not available, the balance number of candidates will be allowed concessional fees of Rs.23,000 (Rupees Twenty Three Thousand only) per annum to be selected from among those allotted by the Commissioner for Entrance Examination in each institution from those having lower family income, irrespective of rank or category with the total number of BPL student eligible for concessional fees not exceeding 14% as above. However, SC/ST category of candidates, who already enjoy fee concession benefits will not be considered for the above purpose.

b. 26% of candidates who have been allowed SEBC status by the Commissioner for Entrance Examination in each institution shall pay an annual tuition fee of Rs.44,000 (Rupees Forty four thousand only). They will be selected on the basis of the rank. However, if the required number of SEBC candidates is not available among the students allotted by the CEE in the institution, the remaining number of candidates will be selected from among the general category on the basis of income irrespective of rank or category as explained in clause (a), with the total number of students eligible for W.A.No.634 of 2021

concessional fee not exceeding 26% as above. c. The same principle as explained in clause (a) and (b) is applicable to the minority institutions also. d. All other candidates as explained in clause (a), (b) & SC/ST shall pay an annual tuition fee of Rs.2,10,000/- (Rupees Two Lakh Ten Thousand only). The fee benefits will be granted only after the closure of allotments to Private Self Financing Dental Colleges. Hence candidates (except SC/ST) allotted to these institutions will have to remit the fee of Rs.2,10,000/- provisionally at the time of the allotment directly to the Member Colleges. The CEE will deduct only Rs.10,000/- from the students mentioned above and this amount will be transferred to the Member Colleges within 45 days of admission, failing which the Member Colleges can claim interest on the payment."

7. Clause (8) makes it clear that the annual fees fixed as

above shall be the complete tuition fee per annum payable for five

years. However the educational agency shall be entitled to collect

from every student admitted to the college irrespective of

whether they have been allotted by the Commissioner for

Entrance Examinations under reservation or otherwise. It further

specifies that member colleges shall not collect any amount from

any student so admitted other than those specified above and the

other fees entitled to be collected as per the agreement such as W.A.No.634 of 2021

proportionate share of fees payable to the Universities,

Government fees, Dental Council of India fees, transportation

charges and other statutory charges. Clause (9) deals with the

remaining 50% of the seats that was to be filled up by the

educational agency by employing the following method :

"a. The Member Colleges are entitled to fill up 15% seats in the NRI category by admitting NEET qualified students who are children/dependents of Non Resident Indians, as per the conditions stipulated in GO(MS)No.34/2013/H&FWD dated 05.02.2013 and GO(MS)No.243/2014/H&FWD dated 06.08.2014. The Member Colleges can collect up to Rs.6,00,000/- (Rupees Six Lakhs only) per annum for five years as fees from NRI candidates thus admitted. In addition to this the Member Colleges can collect an amount not exceeding one year tuition fee, ie, Rs.6,00,000/- (Rupees Six Lakhs only) from the students in the category as interest free deposit. It shall be refunded at the end of the course without interest.

b. The Member Colleges shall be entitled to fill up the remaining 35% seats according to the merit list prepared on the basis of NEET 2016 based on inter-se merit. The Member Colleges will have the right to apportion the seats within this 35% to various categories or within the community or denominations thereof, based on inter-se merit.

c. 10% (5 seats out of 50) will be allotted to the dependents of Staff, Management and Trustees of the W.A.No.634 of 2021

College based on the NEET qualified applications received by the Member Colleges.

d. Each Student thus admitted by the Member Colleges to the above mentioned 35% seats shall pay annual tuition fee up to Rs.5,00,000/- (Rupees Five Lakhs only) per annum for five years for which signed and sealed receipts shall be given by the Member Colleges. In addition to this the Member Colleges can collect an amount not exceeding one year tuition fee, ie, Rs.5,00,000/- (Rupees Five Lakhs only) from the students in the category as interest free deposit. It shall be refunded at the end of the course without interest. The Member Colleges shall be entitled to collect from every student admitted to the College under clause 9(a), (b) & (c) irrespective of whether they have been allotted by CEE under reservation or otherwise, Caution Deposit and other expenses and such other permitted amounts, from students joining in Educational Agency. The Member Colleges can also collect from students their proportionate share of fees payable to the Universities, Government fees, Dental Council of India fees, transportation charges, examination conducting charges, establishment charges, other statutory charges, etc. Such fees and amounts shall be specifically listed out and published each year by the Member Colleges."

8. Therefore, the collection of fees by the management on

account of various aspects are clearly delineated in the

Government Order by virtue of the agreement executed by the

management's association and the State Government. The W.A.No.634 of 2021

contention advanced by the appellants is that since 85 seats were

filled up from the list of the Commissioner for Entrance

Examinations, the unit for BPL and SEBC fee concession is to be

taken by calculating the percentage taking into account the 85

seats.

9. On the other hand, learned Senior Counsel appearing for

the writ petitioners submitted that the manner in which the

admissions have to be made are clearly explained in the

Government Order, and as per which only from the list of the

Commissioner for Entrance Examinations on merit the admissions

can be made, and that does not mean that the fee concession is to

be granted to the allotments made by the Commissioner for

Entrance Examinations. In our considered opinion, taking into

account the conditions contained in the Government Order agreed

by and between the parties other than the 14% and 26%

earmarked to the BPL families and the SEBC students even if the

allotment is made by the Commissioner for Entrance Examinations

an annual tuition fee of Rs.2,10,000/- is to be paid to the

management college. It is clear from clause (9)(d) that 35% seats

earmarked to the member colleges to make admissions from the

list of the Commissioner for Entrance Examinations, the W.A.No.634 of 2021

management was entitled to charge Rs.5 lakhs per annum for five

years. However, since the allotment is made by the Commissioner

for Entrance Examinations on the request of the management by

virtue of clause (7)(d), the management is entitled to charge an

annual fee of Rs.2,10,000/- alone.

10. In our view, there is no ambiguity at all in respect to the

fee to be paid in respect of the concession granted to the BPL and

SEBC students and the candidates allotted by the Commissioner

for Entrance Examinations exceeding the concessional fee

prescribed to such categories. Taking into account all the legal

circumstances and the material on record, we have no hesitation to

hold that the learned single Judge was right in holding that the

approach made by the Commissioner for Entrance Examinations by

issuing Exhibit P7 list of 34 candidates entitled for fee concession,

cannot be sustained under law. Therefore, we are of the clear

opinion that the appellants have not made out any case for

interference with the judgment of the learned single Judge in an

intra court appeal, there being no jurisdictional error or other legal

infirmities justifiable to be interfered. Needless to say, the writ

appeal fails and accordingly dismissed.

11. Learned counsel for the writ petitioner further submitted W.A.No.634 of 2021

that consequent to the directions issued by the writ court, the

Commissioner for Entrance Examinations has earmarked the 20

students eligible for fee concession in the BPL as well as the SEBC

category and the management is prepared to extend the fee

concession in accordance with the agreement executed and the

consequential Government Order passed and discussed above.

This is recorded.

Pending interlocutory applications, if any, shall stand closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge vpv W.A.No.634 of 2021

APPENDIX

PETITIONER'S EXHIBITS:

ANNEXURE A1: G.O.(RT) 3201/2017/F&WF DATED 10/11/2017.

ANNEXURE A2: LIST OF ADMITTED STUDENTS UNDER RTI ACT.

ANNEXURE A3: REVISED LIST PUBLISHED OF 20 STUDENTS.

ANNEXURE A4: COMMUNICATION ISSUED BY COMMISSIONER OF ENTRANCE EXAMINATION.

TRUE COPY

P.A. TO JUDGE