VENKITESWARAN Vs. STATE OF KERALA
LAWS(KER)-1968-1-11
HIGH COURT OF KERALA
Decided on January 22,1968

VENKITESWARAN Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) The petitioners in these writ petitions challenge the admissions made to the Thirumala Devaswom Medical College, Alleppey and seek a writ of mandamus or other appropriate writ, direction or order directing their admission to the College. The Thirumala Devaswom Medical College (referred to hereinafter as the T. D. Medical College for short) was till recently a College managed and administered privately by the Thirumala Devaswom Medical College Trust. On the averments made and the arguments advanced in these writ petitions it would appear that admissions to the T. D. Medical College while under private management were being regulated by a system of registering candidates in advance for admission, on payment of what has been described as "capitation fee". The stand taken by the petitioners' counsel in these writ petitions is that admissions were solely and exclusively governed by priority of registration and payment of capitation fee. According to the Government's counter affidavit, by G. O. M. S.623/65/HLD. dated 23-7-1965, the Government specifically banned the receipt of capitation fee by the Management of the College. Proposals were afoot for the taking over of the management and administration of the College by the Government and a high level committee was appointed to go into the question and submit proposals. The committee reported that the Government should run the administration of the College for a period of five years. At the conference held on 25-8-1967, a Special Officer Sri. S. Padmakumar, Joint Secretary to the Government (Industries Department) was deputed to assess the assets and liabilities of the College. He submitted his report to the Government on 2-9-1967 in which, inter alia he communicated a list of 69 persons to whom the management stood, by reason of receipt of capitation fee or otherwise, morally committed in the matter of admission. The T. D. Medical College Trust was agreeable to transfer the management and administration of the College with its entire properties to the Government, for a period of five years; and an agreement dated 17-10-1967 (Ext. P 4 in O. P. No. 4180 of 1967) was accordingly executed between the Trust and the Government, to evidence the transfer of management and administration together with the properties of the college. G.O. MS. No. 5S6/67/ HLD. dt. 17th October was issued placing on record the transfer of management and administration and constituting a Council of Administration for the College. By G. O. MS. No. 586/HLD dt. 17-10-67 the Government reconstituted the Selection Committee for selecting students for admission to the College, and further ordered that with a view to ensuring the smooth transition of management, the commitments of the erstwhile management regarding admissions to the College as disclosed from the report of Sri. S. Padmakumar, Joint Secretary to Government will be respected as far as possible. (Vide Ext. P5 in O. P. No. 4180 of 1967). It is disclosed in the Government's counter affidavit that by a letter dated 24-10-1967, the Government addressed the University pointing out that the insistence on the conditions prescribed by the University for admission to the Medical Colleges would have the effect of elimination a large number of students who had paid capitation fee and that the same would result in hardship. The Syndicate of the University at its meeting held on 2-11-1967 considered the Government's letter, but was not agreeable to the Government's suggestion. The Syndicate's decision was informally communicated to the Selection Committee of the College on 3-11-1967 by the University's representative in the Committee, (Dr. Abraham), and a formal communication followed on 6-11-1967. This is a brief resume of the takeover of management by the Government and the regulation of selections for admission to the College for the academic year 1967-68.
(2.) It has transpired from the counter affidavit and from the arguments advanced on behalf of the respondents that a large number of the petitioners have been denied admission in view of the Ordinance passed by the University of Kerala prescribing a certain percentage of marks as the minimum qualification for admission to the College. The writ petitions have all proceeded either on no knowledge at all, or but imperfect knowledge, of the Ordinance passed by the University. But on the same being disclosed, or glanced at, in the counter affidavit, the petitioners' counsel or some of them have sought to challenge the Ordinance. The Ordinance itself has amended S.1 of Chap.41 of the Ordinances of the University. The Syndicate directed the amended Ordinance to come into force on 11-5-1966. It is enough to notice that by the said Ordinance, briefly stated, the minimum marks for admission to the 1st M. B. B. S. Course have been prescribed in the case of science graduates as 50% in the Main and Subsidiary Subjects taken together, and in the case of those who had passed the Pre Degree Examination of this University, or the Intermediate Examination, as 50% in each of the subjects of Biology, Physics & Chemistry. A relaxation of 50% was allowed for Scheduled Castes and Scheduled Tribes and Other Backward Classes. The Ordinance has been attacked as not valid. The propriety and validity of applying the Ordinance to selections to the T. D. Medical College has been further attacked. The relaxation made to the extent of 5% in favour of the Scheduled Castes and Tribes and other Backward Classes has also been attacked. The case presented was, that but for the Ordinance, admissions would have been regulated by the sole test of priority in the matter of registration and payment of capitation fee. These contentions may first be examined.
(3.) The main attack against the Ordinance was that it has not conformed to the requirements of the Kerala University Act 14 of 1957. The transgressions complained of were in regard to the provisions of S.27 (1) and S.37(3) of the University Act. S.27 of the Act reads: "27. Procedure for making Ordinances - (1) All Ordinances made by the Syndicate shall have effect from such date as the Syndicate may direct; but every Ordinance so made shall be submitted, as soon as may be, to the Chancellor and the Senate, and shall be considered by the Senate at its next succeeding meeting. The Senate shall have power by a resolution passed by a majority of not less than two thirds of the members present at such meeting, to cancel or modify any such Ordinance. (2) The Chancellor may direct that the operation of any Ordinance shall be suspended until such time as the Senate has had an opportunity of considering the same. (3) The procedure to be followed in making amending or repealing Ordinance in so far as these are not provided in this section shall be prescribed by the Statutes." S.37 of the Act is entitled "miscellaneous" and the relevant provision contained in clause (3) thereof reads: "37. Miscellaneous - (1) x x x x x (2) x x x x x (3) The Statutes, Ordinances, rules and bye laws passed in accordance with the provisions of this Act shall be published in the Gazette".;


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