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 Kerala Guv averts clash with Centre, Apex court

By Rajiv Shukla
NEW DELHI :
On Saturday, April 7 Kerala Governor P Sathasivam averted a major head-on clash between an year old Left Democratic Front (LDF) coalition government of Kerala and the Centre, and at the same time withKerala Governor P Sathasivam the apex judiciary.

The Governor declined to approve the Kerala Professional Colleges (Regulation and Admission in Medical Colleges) Bill 2018 which sought to legalise admissions made by two private medical colleges, openly defying the MCI and the Supreme Court orders.

The Bill sought to regularise 180 MBBS admissions made in 2016-17 by two private medical colleges owned by minority heavy-weights. The admissions, made by Kannur medical college and Karuna Medical College, were declared illegal by the MCI as well as the Apex Court.

"I hereby withhold the assent to this bill," said the order from the Governor's office to the state government. The Governor, who is a former Chief Justice of India, took the call based on legal advice in addition to taking into consideration the dissent notes from government secretaries. He withheld his assent invoking his discretionary powers under Article 200 of the Constitution.

Earlier in the morning, a BJP delegation had met the Governor seeking to refuse his nod for the legislation. Senior Congress leader VM Sudheeran also had urged the Governor to decline the bill.

As per legal advice received by the Governor's office, the bill would not have stood legal scrutiny in the wake of the SC verdict. Sources said the Governor has made clear that the Supreme Court had mentioned about the conditions to be followed during admissions.

The Supreme Court had on April 5, 2018 nullified the Kerala Professional Colleges (Regulation and Admission in Medical Colleges) Ordinance 2017 on an appeal by the MCI. Seeing the fate of the Ordinance, the state government hurriedly passed the bill and sent it to the Governor for approval.

On March 28, the Supreme Court had rejected a review petition filed by the state government to invalidate cancellations of the admissions in these two colleges as per a 2016 Kerala high court order. The high court had found that the colleges were not transparent about their admission procedures and cited the scuttling of chances of meritorious students in favour of those who were not as the grounds for the cancelling admissions.

Chief Minister Pinarayi Vijayan and health minister K.K. Shylaja, who oversee the admission process, said the logic behind the bill was humanitarian considerations to save the academic life of innocent students penalized for probable technical errors of the management.

Background

The admissions were first set aside in October 2016 by an official panel headed by retired Justice J.M. James.

On 27 March, Deccan Chronicle reported that another official, who was tasked with advising on whether to regularize the disputed seats had recommended against the regularization.

Based on documents obtained using Right to Information, the newspaper report said that the official’s findings included profiteering in the seats by these colleges, which is illegal in India.

The government then asked the law department to take a look at the situation, which came up with a report favouring regularization. The government decided to follow the legal opinion of the law department.

On 31 January, the state cabinet agreed to regularizing the seats in the two colleges after fining them at a rate of Rs 3 lakh per student for irregularities in the admission process.

On April 5, the Supreme Court stayed the Kerala Professional Colleges (Regularization of Admission in Medical Colleges) Ordinance 2017 [Ordinance No.21 of 2017], promulgated by the Kerala government to save admissions to Kannur Medical College and Karuna Medical College by nullifying judicial orders.

"No student shall be permitted to reap any benefit of any action taken and they shall not be permitted to attend the college or the classes or continue in medical colleges in any manner pursuant to ordinance," the Supreme Court order said.

The two judge Bench of Justices Arun Mishra and UU Lalit observed that prima facie the Ordinance in question blatantly seeks to nullify the binding effect of the order passed by the Supreme Court.

The court said : “Prima facie it was not open to declare this Court’s order as void or ineffective as was sought to be done by way of ordnance. We place on record that we had scanned the documents regarding admission in the first round of litigation and the case was heard at length for several days. Hard copies were also placed before us; whereafter we rendered the decision after considering that admissions were not given to the students in accordance with law and approved the decision of regulatory committee effective. Thus, it was prima facie not open to sit over the judgment and validate those very admissions and to venture into regularising them”.

The bench also made it clear that no student shall be permitted to reap any benefit of any action taken and they shall not be permitted to attend the college or the classes or continue in medical colleges in any manner pursuant to ordinance.

The ordinance was notified on October 20, 2017, and suffers from apparent constitutional infirmities.

Case Background

Kannur Medical College is a self-financing institution, run by a private trust, Prestige Educational Trust. Likewise, Karuna Medical College is run by a private trust namely Safe Development Alms Trust. From 2016-17 onwards, admissions to medical college seats had to be done on the basis of NEET merit list after following common counseling process. Regarding the admission process, the high court had passed directions on 26.08.2016 in W.P(c) 28041/16. It was directed that applications for admission should be received only through online mode and such applications shall be uploaded for the scrutiny of the Admission Supervisory Committee immediately on the expiry of the last date for submission of applications. It was further directed that the admission process should be proceeded with only on the basis of a prospectus, for which approval of the Admission Supervisory Committee has been obtained.

The Admission Supervisory Committee is a statutory body under 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.

 

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