The Supreme Court has set aside Kerala Professional Colleges (Regularization of Admission in Medical Colleges) Ordinance 2017[Ordinance No.21 of 2017], which was promulgated by Kerala Government to regularize the admissions to private medical colleges, which were earlier cancelled by the Kerala High court and the Supreme Court.
The Medical Council of India had approached the Supreme Court in last April challenging the ordinance. The challenge was accepted and Ordinance was struck down as 'ultra vires' by a Division Bench of Justice Arun Mishra and Justice Indira Banerjee. The Court held that Ordinance was an abuse of process to get over judgements of the High Court and Supreme Court, and thus was an attempt to interfere with the powers and functions of judiciary. The operation of the Ordinance was stayed by the Court while admitting the matter in April 2018.
The Ordinance was concerned with admissions in two self-financing medical colleges: Kannur Medical College, run by a private trust, Prestige Educational Trust; and Karuna Medical College, run by a private trust namely Safe Development Alms Trust. Admissions made to these colleges during 2016-17 were cancelled by the Admission Supervisory Committee finding that the admissions were not made through online process as per binding directions. It was also found that admissions were made without publishing an approved prospectus in the college website. Though the colleges challenged the committee’s order in High Court of Kerala, the court did not accept. As per a detailed judgment dated 28.10.2016, the laxity of the institutions in following a transparent and non-arbitrary admission process was deprecated in the strongest possible words by the High Court and cost of Rs 1 lakh each was imposed on both the colleges.
During March 2017, the Supreme Court also confirmed the cancellation of admission. The appeals by colleges were dismissed by bench comprising Justice Arun Mishra and Justice Amitava Roy, and the plea that cancellation would cause hardship to students was specifically rejected noting that it would amount to creating a bad precedent. The review petitions filed by students also got dismissed subsequently.
After that, the Ordinance was promulgated in October 2017, enabling the government to regularize admissions in any medical college during the academic year 2016-17, “ignoring any judgment, decree, order or proceedings of any court or the Admission Supervisory Committee” . The management of the colleges seeking regularization should make an application to that effect, and the students have to pay Rs 3 lakhs as ‘regularization fee’.
Challenge to Ordinance by MCI
The Medical Council of India (MCI) contended that the Ordinance was a piece of colourable legislation attempting to override judicial orders. It is also contended that the Ordinance has resulted in compromising merit in admissions. ‘Whether illegal admissions made by a medical college and the same having been invalidated by the Courts be legalized by promulgating an Ordinance,’ the MCI asked in its petition.
At the stage of admission, the bench of Supreme Court consisting of Justice Arun Mishra (who headed the earlier bench which dismissed the colleges’ appeal) and Justice UU Lalit(who was part of the bench at the stage of admission) did not take it lightly to the Ordinance. The court observed that the cancellation of admissions was approved by it after finding that they were not given in accordance with law. “Thus, prima facie it was not open to sit over the judgment and validate those very admissions and to venture into regularising them. 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,” observed the bench. While staying the Ordinance, the court also made it clear that no student will be entitled 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 on the basis of the Ordinance.
Just a day before the Supreme Court order staying the operation of Ordinance, the Kerala Legislative Assembly had hastily passed the Bill to convert the Ordinance into legislation, in a rare show of unity between the ruling front and opposition. Reportedly, the counsel appearing for State of Kerala submitted before the court that the Bill had been passed, probably hoping to render the MCI petition infructuous. However, it turned out to be a furtive move, as the bench specifically enquired whether the Bill has been signed by the Governor and notified. Since that stage was yet to be over, the court proceeded to consider the matter, ignoring the fact of passing of Bill by the Assembly.
Governor/Ex-CJI in tight spot
That the Governor of Kerala, Justice P. Sathasivam, who is an ex-Chief Justice of India, had to sign the Ordinance which was intending to invalidate Supreme Court's order, had led to embarrassing situations. Live Law had published an article commenting on the irony of an ex-CJI signing an Ordinance to nullify SC order. It was opined in the article that the "Ordinance was a blatant misuse of executive power and an affront to judicial authority". With the Supreme Court setting aside the Ordinance, the opinion expressed by Live Law stands vindicated.
(Story to be updated after receiving full text of judgment)
Read the Judgment Here