Hon'ble Dr. Justice D.Y. Chandrachud
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) No.1247 OF 2018
RIYA GEORGE PETITIONER
VERSUS
KANNUR MEDICAL COLLEGE AND ORS RESPONDENTS
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 The petitioner, who is a student of Medicine, has instituted these
proceedings under Article 32 of the Constitution seeking a direction to the first
respondent to compensate her for the loss of an academic year.
2 In Sankalp Charitable Trust v Union of India1
, this Court issued a
direction on 28 April 2016 to the effect that admissions to MBBS/BDS courses
shall be conducted through the National Eligibility-cum-Entrance Test2
. On 9
August 2016, the Union government directed all States and Union Territories to
conduct combined/centralised counselling for the 2016-17 MBBS admissions,
consistent with the judgment of this Court in Modern Dental College and
Research Centre v State of Madhya Pradesh3
.
1 (2016) 7 SCC 487
2 NEET
3 (2016) 7 SCC 353
1
3 The petitioner secured 97.16 percent marks in her 12th standard Board
examinations. In 2016, she qualified for NEET 2016-17 with a percentile score of
94.36.
4 On 20 August 2016, the Government of Kerala directed all medical
colleges to admit only students who were selected by the Commissioner for
Entrance Examinations4
through common counselling. A Writ Petition5
was
instituted in the Kerala High Court by medical colleges for challenging this
direction.
5 On 26 August 2016, the High Court issued interim directions to the effect
that MBBS admissions for 2016-17 shall be conducted on the basis of NEET
2016 and that all applications shall be made online to facilitate transparency with
regard to merit and the identities of student applicants. On 3 September 2016
the Admission Supervisory Committee for Professional Colleges in Kerala6
issued
directions to medical colleges in the state, stating that admissions in
contravention of those directions will not be registered by the Kerala University of
Health Sciences.
6 On 15 September 2016, ASC cancelled all the admissions made by the
first respondent (Kannur Medical College) after conducting an enquiry, on the
ground that it had neither called for online applications nor did it comply with the
requirements in the revised approval of prospectus dated 10 September 2016.
On 17 September 2016, ASC issued an order reiterating its directions and called
upon all colleges to publish relevant details online. Applications for the MBBS
4 CEE
5 WP (C) No 28041 of 2016
6 ASC
2
degree course with the first respondent for 2016-17 were also invited. The
petitioner applied for admission pursuant to this process.
7 On 26 September 2016, the petitioner handed over all relevant documents,
including her certificates to the first respondent and secured admission to the first
year of the MBBS degree course. The petitioner paid a total fee of Rs 21.65
lakhs to the first respondent which comprised, inter alia, of Rs 10 lakhs as annual
fees, Rs 10 lakhs as fee deposit and Rs 1.65 lakhs as a special fee. On 28
September 2016, this Court passed an order directing that all counselling should
be centralised7
. Classes for the MBBS degree course commenced on 1 October
2016.
8 Shortly thereafter, on 2 October 2016, the ASC cancelled MBBS
admissions granted by the first respondent due to non-compliance with its orders.
The Government of Kerala was requested to direct CEE to conduct centralised
admissions. Against the order of cancellation, the first respondent moved a Writ
Petition8
before the Kerala High Court. On 4 October 2016 the petitioner
registered for spot allotment with the first respondent. On 6 October 2016, the
High Court, in an interim order, directed the first respondent to submit the records
for spot allotment to the CEE. On 13 October 2016, CEE submitted its report
decrying the absence of cooperation by the first respondent. The Commissioner
had this to state in his report:
“12. The proceedings of the Spot Admission Process started
at 9.30 am on 07.102016 at the Auditorium, Govt. Medical
College, Thiruvananthapuram. Officials including the Director
of Medical Education, the Joint Director of Medical Education
and officials representing various Medical and Dental
7 SLP (C) No 9862 of 2016
8 Writ Petition (C) No 32186 of 2016
3
Colleges were also present. The representatives of Kannur
Medical College, Anjarakkandy, Kannur reported at the venue
of the Spot Admission only at 11.30 am and they furnished
the following records.
1. List of total applications received (without NEET rank &
Roll. No) – 448 applicants.
2. List of disqualified applications: 7 applicants
3. Category-wise Merit list (without NEET rank & Roll No.) –
448 applicants.
4. List of candidates admitted – 150 candidates
5. List of students registered with KUHS – 150 candidates
(Annexure 14 – copy of lists)
The persons who claimed to be the representatives of the
college didn’t furnish the letter of authorization from the
college authorities. Whey they were asked to register their
attendance, they immediately left the counselling hall around
12’O clock without registering their attendance.”
9 On 28 October 2016, the High Court delivered a judgment imposing costs
of Rs one lakh on the first respondent and directing the ASC to scrutinise all the
records of the medical colleges with regard to the admissions made. This order
of the High Court was challenged before this Court9
. On 14 November 2016
admissions to the first respondent were cancelled again due to non-compliance
with various directions including the non-publication of lists and conducting
admissions offline, among other reasons. On 22 March 2017, this Court declined
to interfere with the order of the Kerala High Court. Pursuant to the said order, on
31 March 2017, the Registrar of Kerala University of Health Sciences directed the
principal of the first respondent to discharge all the 150 students who were
admitted for the academic year 2016-17 and report compliance.
10 The petitioner, together with other students, instituted a writ petition10 in the
Kerala High Court to challenge the order of cancellation. The High Court
9 SLP(C) No 32580-81 of 2016
10 Writ Petition (C) No 15088 of 2017
4
dismissed the writ petition on 22 June 2017, which was confirmed by this Court
on 10 July 2017.
11 The Kerala Professional Colleges (Regulation of Admissions in Medical
Colleges) Ordinance 2017 was promulgated by the Governor. The Ordinance
sought to regularise MBBS admissions in certain medical colleges against the
payment of Rs 3 lakhs per student as a regularisation fee. The Ordinance was
held to be ultra vires by this Court in MCI v State of Kerala11The petitioner, in the
meantime, appeared for NEET 2017 and secured admission at the Amrita
Institute of Medical Sciences.
12 On 26 September 2017, the father of the petitioner addressed a
communication to the principal of the first respondent seeking a refund of the
documents and fees submitted to the college since the petitioner had joined
another college for pursuing her MBBS course. The letter read thus:
“Sub: Request to withdraw from MBBS Course
My daughter Riya George has joined for the first year MBBS
Course in Kannur Medical College, Anjarakandy for the
academic year 2016-17. Since the admission to your college
is under dispute, my daughter no longer waned to continue
with the course. My daughter has already joined another
college for MBBS Course. I request you to return/refund all
the documents and fees submitted by me/my daughter at the
earliest.”
13 Simultaneously the petitioner’s father addressed a letter to the Station
House Officer of the Chakkarakkal police station, Kannur where he had lodged a
complaint on 26 September 2017 stating that the dispute with the college had
been settled against the receipt of an amount of Rs 20 lakhs on 25 September
11 (2018) SCC Online SC 1467
5
2018 towards full and final settlement, as a result of which the petitioner did not
wish to proceed with the complaint any further. The petitioner’s father had also
instituted a petition before the Admission and Fee Regulatory Committee for
Medical Education in Kerala. The father of the petitioner submitted an application
for the withdrawal of the petition in the following terms:
“Petition filed by the petitioner KV George in the above matter
to permit him to withdraw the above complaint.
Since the matter has been talked over and settled between
the petitioner and respondent amicably and as the petitioner
has received Rs 20 lakhs as per Demand Draft No 960174
and 960175 for Rs 10 lakhs each drawn on Canara Bank,
Chakkarakal Branch dated 25.9.2017 in full and final
settlement of the claim of the petitioner, the petitioner does
not want to proceed with the above complaint any further.
Hence it is humbly prayed that the Hon’ble Chairman may be
pleased to permit the petitioner to withdraw the above
complaint in the interest of justice.
Dated this the 26th day of September 2017.”
14 It is admitted that two demand drafts dated 25 September 2017, each in
the amount of Rs 10 lakhs towards refund of the fee were received by the
petitioner. The father of the petitioner submitted an affidavit dated 26 September
2017 in the following terms:
“I, KV George, S/o Varkey, aged 58 years, Kanjiramkuzhi
House Chengalayi PO, Sreekandapuram, Kannur do hereby
solemnly and undertake as follows:
My daughter Riya George joined for the first year MBBS
Course in Kannur Medical College, Anjarakandy for the
academic year 2016-17. Since the admission to the aid
college is under dispute, I have filed complaint before
Chakkarakal police station against the college and its various
officials and management. I have also filed a complaint before
admission and Fee Regulatory Committee. The matter has
been talked over and settled between me and the college and
I have received Rs 20 lakhs as per Demand Draft No 960174
and 960175 for Rs 10 lakhs each drawn on Canara Bank,
Chakkarakal Branch dated 25.9.2017 towards the amount
claimed by me from the college towards the full and final
settlement. Therefore, I undertake to withdraw the complaint
6
filed before the above Forum and to withdraw from the
course. I have already submitted letters/memos to that effect.
I undertake to appear before the above Forums in person or
through lawyer and submit orally or in writing any other
submissions required by concerned authorities to fully and
effectively closing the entire dispute between the college and
me.”
15 The Chairperson of the Admission and Fee Regulatory Committee for
Medical Education passed an order dated 26 September 2017 permitting the
withdrawal of the complaint filed by the petitioner as having been settled. The
order reads as follows:
“ORDER
Sri KV George, the father of Riya George who got admission
to the MBBS Course in the academic year 2016 in the
respondent college, Kannur Medical College filed this petition
for directing the respondent college to return the amount of
Rs 21,65,000/- remitted by him towards fee. The matter has
been settled between the parties. As per the settlement the
complainant has agreed to receive 2-post-dated cheques
each for Rs 10 lakhs drawn on Canara Bank, Chakkarakkal
branch dated 25.09.2017 in full and final settlement of the
claim of the petitioner.
In view of the settlement between the parties, Sri KV George
is permitted to withdraw the complaint. The settlement is
recorded.”
16 Subsequently, it appears that another complaint was filed by the
petitioner’s father stating that he had received an amount of Rs 20 lakhs but, that
the remaining amount of Rs 1.65 lakhs had not been paid. He also claimed an
amount of Rs 3.50 lakhs towards interest on the amount paid. Rejecting the
objection of the first respondent that there had been a full and final settlement
between the parties, the Committee passed an order on 29 December 2017
allowing the claim for the balance of Rs 1.65 lakhs. The Committee rejected the
claim for interest, leaving it open to the complainant to work out his remedies in
7
an appropriate forum. The first respondent filed a petition for review of the order
dated 29 December 2017 on the ground that there had been a final settlement of
Rs 20 lakhs. While rejecting the review petition, the Committee observed thus:
“Shri KV George submitted that he was in a hurry to get back
the certificates and the money and in the above
circumstances there was no other alternative but to sign in
the Memo prepared by the college for withdrawing the
complaint. He further submitted that he was in dire need of
the money in connection with the admission of his daughter,
and hence he had no other alternative, but to sign in the
Memo prepared by the college. After considering all the
aspect the committee had taken the view that the signing of
the Memo seeking permission to withdraw the complaint was
not an act made on free consent of the complainant but was
made in compelling circumstances. Hence the Principles of
Waiver and Estoppel shall not have application in the present
circumstances.”
In consequence, the Committee has maintained that the college was liable
to return an amount of Rs 1.65 lakhs to the petitioner.
17 In the meantime, on 29 August 2018, a consent order was passed by a two
Judge Bench of this Court in The Principal, Kannur Medical College v
Admission Supervisory Committee for Professional Colleges in Kerala12
.
The terms of the consent order, inter alia, envisage that:
“1.The college shall return the double of the amount than the
fees deposited by each one of 150 students with college, by 4
September, 2018. It is submitted that the amount shall be
remitted in the bank account of each of the students. Let
compliance report including bank statements, bank account
numbers with names of students be filed not only in this Court
but also to the Admission Supervisory Committee (ASC). The
ASC shall ascertain and submit the report whether amount
has been refunded, as ordered, to the students and bank
accounts belong to them.”
12 Special Leave Petition (C) No 23225 of 2018
8
18 Subsequently, the issue of refund was revisited by another order of the two
Judge Bench of this Court dated 4 October 2018. Before this Court, the ASC
submitted a report on 1 September 2018 recording that diverse amounts ranging
from Rs 1 lakh to Rs 35 lakhs were collected from most of the 150 students who
had been admitted by the college. Dealing with this aspect of the matter, this
Court observed thus:
“It is a seriously disputed fact in the instance case how much
amount had been collected from each of the students and
what has been refunded as per the Order passed by this
Court is not the appropriate sum. In the facts and
circumstances of the case, as certain material has been
placed on record by the college in this Court only and that
was not placed before the ASC and students have also come
up with certain documents indicating how they had collected
amount paid, they are also required to be considered by the
ASC. This Court cannot conduct factual enquiry. It was
suggested by Mr. Jaideep Gupta, learned senior counsel that
the parties may be relegated to the ASC for adjudication of
the aforesaid aspect. The 6 ASC to consider the material
which may be placed on record by the respective parties and
take a decision in accordance with law on the basis of the
evidence adduced in each of the case with respect to each of
the students.”
19 On the aspect of refund, the Court directed that an inquiry be made by the
ASC and an appropriate order should be passed thereon. In pursuance of the
above directions of this Court, the ASC issued a notice on 28 November 2018
stating that the complaints of 12 students were being posted for hearing on 3
December 2018. The complainants and the first respondent were directed to
appear before the Committee (with relevant documents) for establishing the right
of claim. The students to whom a notice has been issued include the petitioner.
20 The petitioner has moved these proceedings under Article 32 of the
Constitution seeking an order for the payment of damages by the first
9
respondent. The basis of the claim is that she has lost one year of education as
a result of the legal proceedings emanating from the cancellation of the
admissions granted by the first respondent. Learned counsel submitted that the
first respondent was guilty of violating the regulations governing the process of
admissions. As a result, students have had to suffer, the petitioner being one
among them. Learned counsel for the petitioner submitted that the petitioner
should not be relegated to pursue her claims before the Committee since that will
only delay the proceedings. She appealed to this Court to bring a finality to the
matter by a suitable award for damages against the first respondent.
21 A preliminary objection has been raised on behalf of the first respondent to
the maintainability of the writ petition on the ground of a wilful suppression of
material facts by the petitioner. Mr Huzefa Ahmadi, learned Senior Counsel
appearing on behalf of the first respondent submits that the petition contains no
disclosure of the following material facts:
(i) The complaint lodged with the police was withdrawn specifically on the
ground that an amount of Rs 20 lakhs had been received in full and final
settlement from the first respondent;
(ii) An application was submitted on 26 September 2017 to the Admission and
Fee Regulatory Committee for the withdrawal of the complaint in lieu of the
receipt of Rs 20 lakhs in full and final settlement;
(iii) An affidavit filed by the father of the petitioner withdrawing all claims; and
(iv) By an order dated 26 September 2017, the Chairperson of the Admission
Fee Regulatory Committee for Medical Education permitted the withdrawal
of the complaint.
10
22 We have, during the course of the hearing, perused relevant parts of the
writ petition. In the synopsis and the list of dates, there is a significant absence of
the facts which have been disclosed in the counter affidavit filed by the first
respondent. The only reference to the refund of an amount of Rs 21.65 lakhs is
contained in para 2(o) of the Special Leave Petition in the following terms:
“A perusal of the factual backdrop thus clearly reveals that the
Petitioner was a victim of deliberate actions of Respondent
that were illegal and contrary to the directions of the Court,
MCI and the ASC. Even for refund of Rs 21,65,000/- collected
by the College, the Petitioner had to move the ASC since the
College refused to refund moneys deposited.”
23 Apart from this, the petitioner has annexed a copy of the order dated 29
May 2018 passed by the Admission and Fee Regulatory Committee on the
review petition filed by the first respondent against the order of the Committee
dated 29 December 2017 for the refund of an amount of Rs 1.65 lakhs. Material
facts pertaining to what had been transpired prior to that order have not been
disclosed in the pleadings. We find this conduct of the petitioner to be
unsatisfactory.
24 While moving a writ petition before this Court, the petitioner ought to have
made a full, fair and candid disclosure of all facts. The fact that while seeking a
refund of the fees paid to the first respondent, the father of the petitioner had
executed several documents by which he had unconditionally withdrawn the
claim, was certainly a material circumstance which ought to have been disclosed
before this Court. Learned counsel for the petitioner submits that facts pertaining
to the withdrawal of the claim, including the documents which were executed by her
father, were unknown to both her and her father. She submitted that these
11
documents were obtained by the first respondent when the fee was refunded. It is
not possible to accept this contention. The execution of the documents is not in
dispute. That apart, the petitioner has annexed a copy of the review order passed by
the Committee. There is sufficient indication in the order to lead the petitioner to a
knowledge of what had transpired earlier. Despite this, a full statement of facts has
not been made. Learned counsel appearing on behalf of the petitioner submits
that the claim was withdrawn under duress, since the petitioner was required to
obtain a refund of fees, having secured admission to the Amrita Institute of
Medical Sciences. In order to enable the Court to consider the plea of duress, it
was the bounden duty and obligation of the petitioner to disclose a full and
complete statement of facts. This has not been done.
25 Ordinarily, this should result in the dismissal of the writ petition under
Article 32 of the Constitution. However, justice to the petitioner should not
become a victim of the prestige of this Court. In deciding not to dismiss the
petition, we have borne in mind the fact that the Admission and Fee Regulatory
Committee has issued a notice to the petitioner on 28 November 2018, fixing a
hearing for the purpose of deciding upon her claim, amongst the claims of other
students. The Committee, in its review order dated 29 May 2018 has already
adverted to this aspect, which we have extracted earlier.
26 There is another reason why we are of the opinion that it would be
inappropriate for this Court to quantify damages in the present proceedings. As
we have noted earlier, another two Judge Bench of this Court issued directions
by consent on 29 August 2018 requiring the first respondent to deposit “double
the amount” of “the fees deposited by each one of 150 students” with the college.
12
This batch of 150 students includes the petitioner. Technically, it is true that the
petitioner was not a party to the earlier proceedings and that the order dated 29
August 2018 is a consent order. However, any determination by this Court in the
present proceedings of the quantum of damages payable to the petitioner would
be contrary to the underlying purpose and object of the order passed by the
coordinate bench. In the order dated 29 August 2018, the two Judge Bench laid
down the principle – refund of double the amount of the fee – but left the exact
quantification of the amount in each case to be determined by the Committee.
Quantification of damages in monetary terms in the present writ petition will have
a bearing on the pending proceedings before the Committee. That proceeding
covers the entire batch of 150 students. Moreover, in pursuance of the order, the
petitioner has received a notice from the Committee to appear in support of her
claim.
27 There can be no manner of doubt that the petitioner is entitled to be
compensated for the loss of a valuable year which was occasioned by the
misdemeanors of the first respondent. A student who has been deprived of a
valuable year in pursuing her studies, cannot be left in the lurch. It is in this
background, that the explanation that the complaints made by the father of the
petitioner were withdrawn only because there was an urgent need to obtain a
refund of the fee, to enable the petitioner to secure admission to the Amrita
Institute of Medical Sciences must be understood. Middle class parents do not
have the luxury of resources. We must form a robust understanding of the
circumstances in which the father of the petitioner withdrew his complaint. The
Committee has in fact recorded a finding of fact that the withdrawal was not
13
voluntary and was occasioned by the serious impediment in receiving a refund of
fees. Hence, the petitioner would be entitled to the benefit of the principle which
was formulated in the orders of this Court dated 29 August 2018 and 4 October
2018. Since the issue has been remitted back to the Committee by a coordinate
bench, following the norm of judicial discipline, we are inclined to follow the same
course of action.
28 In order not to prejudice the case of the petitioner, we leave it open to her
to pursue her claim before the Committee. The petitioner would be at liberty to
pursue her claim before the Committee in terms of Clause 1 of the order dated 29
August 2018 passed by this Court as clarified by the subsequent order dated 4
October 2018. We request the Admissions Committee to take a decision
expeditiously and within a period of three months of the receipt of a certified copy
of this judgment. All the rights and contentions of the parties are kept open.
29 The Writ Petition shall accordingly stand disposed of. There shall be no
order as to costs.
…………..…….……..………………………….J
[Dr DHANANJAYA Y CHANDRACHUD]
…….………..…….………….………………….J
[HEMANT GUPTA]
NEW DELHI
FEBRUARY 21, 2019
14
