# MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS

- **Citation:** [2018] 10 S.C.R. 213
- **Court:** Supreme Court of India
- **Decided:** 2018-09-12
- **Bench:** Arun Mishra, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/medical-council-of-india-v-state-of-kerala-ors-32165
- **Pages:** 48

## Headnote

Constitution of India:
Articles 14, 50 and 213 (1) - Principle of 'Separation of
Powers' - Admission of 180 students to MBBS course were quashed
by Admission Supervisory Committee - The order was affirmed by
High Court as well as Supreme Court - State Government thereafter
notified Ordinance whereby it sought to regularise the admission of
those 180 students - Writ petition challenging the Ordinance on the
ground that the Ordinance amounted to nullifying the judgments/
orders of the Court - Held: The impugned Ordinance is clear
entrenchment upon the field of judicial review which is reserved for
judiciary - Provisions in the Ordinance were in violation of the
doctrine of separation of powers enshrined under Art. 50 -
Ordinance is not only impermissible and beyond legislative
competence of the State, it also had the effect of perpetuating
illegality and arbitrariness committed by the College in question in
not following the mandate of law laid down by the Court -
Independence of judiciary is fundamental to the rule of law - A
legislation can be invalidated on the basis of breach of separation
of judicial power since such breach is negation of equality provided
u/Art. 14 - There cannot be an attempt to interfere with the judicial
process - Law which interferes with the judicial process may be
invalidated - The Ordinance is ultra vires and entrenchment upon
the field earmarked for judiciary, as it sought to nullify judgments
of the Court.
Art. 141 - Judgment - Binding effect of - Held: If an Order
refusing to grant leave to appeal is by speaking order, it is a
declaration of law within the meaning of Art. 141 - Whatever is
stated in the order, other than law, are the findings of the Court
which would bind the parties and also the Court, Tribunal or
Authority - Precedent.
 [2018] 10 S.C.R. 213
213
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[2018] 10 S.C.R.
Art. 142 - Power under - Scope of - Held: Power u/Art. 142
cannot be exercised by the court to nullify its own judgment and to
perpetuate illegality.
Allowing the Writ Petitions, the Court
HELD: 1.1 A bare reading of the Kerala Processional
Colleges (Regularisation of Admission in Medical Colleges)
Ordinances, 2017, makes it clear that the same aims at
regularisation of admissions of students during the academic year
2016-17 which were set aside by the Admission Supervisory
Committee (ASC), the High Court and by this Court to benefit
only two colleges and students in question. [Para 18] [223-E-F]
1.2 What has been done by the impugned Ordinance by the
State Government is clearly entrenching upon the field of judicial
review and it was obviously misadventure resorted to. It was not
at all permissible to the State Government to promulgate the
Ordinance/legislate in the matter. Not only the judgment of the
court is nullified and the arbitrariness committed in admissions
was 17 glaring, and the decision of the High Court which was
affirmed by this Court with respect to applications to be
entertained if they were online applications has been undone. It
was clearly an act of nullifying judgment and is violative of judicial
powers which vested in the judiciary. It was not open for the State
Government to nullify the judgment/orders passed by the High
Court or by this Court. It was not a case of removal of a defect in
existing law. Various Constitution Bench decisions of this Court
have settled the principles of law governing the field. It passes
comprehension how the State Government has promulgated the
Ordinance in question. [Para 21] [229-G-H; 230-A-C]
1.3 Independence of the judiciary is fundamental to the rule
of law. A legislation can be invalidated on the basis of breach of
separation of judicial power since such breach is negation of
equality under Article 14. Law can be declared void if it is found
to have transgressed the constitutional limitations. The
legislature cannot declare any decision of a court of law to be
void or of no effect. It can remove the defects of the l

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MEDICAL COUNCIL OF INDIA
v.
STATE OF KERALA & ORS.
(Writ Petition (C) No. 231 of 2018)
SEPTEMBER 12, 2018
[ARUN MISHRA AND INDIRA BANERJEE, JJ.]
Constitution of India:
Articles 14, 50 and 213 (1) - Principle of 'Separation of
Powers' - Admission of 180 students to MBBS course were quashed
by Admission Supervisory Committee - The order was affirmed by
High Court as well as Supreme Court - State Government thereafter
notified Ordinance whereby it sought to regularise the admission of
those 180 students - Writ petition challenging the Ordinance on the
ground that the Ordinance amounted to nullifying the judgments/
orders of the Court - Held: The impugned Ordinance is clear
entrenchment upon the field of judicial review which is reserved for
judiciary - Provisions in the Ordinance were in violation of the
doctrine of separation of powers enshrined under Art. 50 -
Ordinance is not only impermissible and beyond legislative
competence of the State, it also had the effect of perpetuating
illegality and arbitrariness committed by the College in question in
not following the mandate of law laid down by the Court -
Independence of judiciary is fundamental to the rule of law - A
legislation can be invalidated on the basis of breach of separation
of judicial power since such breach is negation of equality provided
u/Art. 14 - There cannot be an attempt to interfere with the judicial
process - Law which interferes with the judicial process may be
invalidated - The Ordinance is ultra vires and entrenchment upon
the field earmarked for judiciary, as it sought to nullify judgments
of the Court.
Art. 141 - Judgment - Binding effect of - Held: If an Order
refusing to grant leave to appeal is by speaking order, it is a
declaration of law within the meaning of Art. 141 - Whatever is
stated in the order, other than law, are the findings of the Court
which would bind the parties and also the Court, Tribunal or
Authority - Precedent.
 [2018] 10 S.C.R. 213
213
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Art. 142 - Power under - Scope of - Held: Power u/Art. 142
cannot be exercised by the court to nullify its own judgment and to
perpetuate illegality.
Allowing the Writ Petitions, the Court
HELD: 1.1 A bare reading of the Kerala Processional
Colleges (Regularisation of Admission in Medical Colleges)
Ordinances, 2017, makes it clear that the same aims at
regularisation of admissions of students during the academic year
2016-17 which were set aside by the Admission Supervisory
Committee (ASC), the High Court and by this Court to benefit
only two colleges and students in question. [Para 18] [223-E-F]
1.2 What has been done by the impugned Ordinance by the
State Government is clearly entrenching upon the field of judicial
review and it was obviously misadventure resorted to. It was not
at all permissible to the State Government to promulgate the
Ordinance/legislate in the matter. Not only the judgment of the
court is nullified and the arbitrariness committed in admissions
was 17 glaring, and the decision of the High Court which was
affirmed by this Court with respect to applications to be
entertained if they were online applications has been undone. It
was clearly an act of nullifying judgment and is violative of judicial
powers which vested in the judiciary. It was not open for the State
Government to nullify the judgment/orders passed by the High
Court or by this Court. It was not a case of removal of a defect in
existing law. Various Constitution Bench decisions of this Court
have settled the principles of law governing the field. It passes
comprehension how the State Government has promulgated the
Ordinance in question. [Para 21] [229-G-H; 230-A-C]
1.3 Independence of the judiciary is fundamental to the rule
of law. A legislation can be invalidated on the basis of breach of
separation of judicial power since such breach is negation of
equality under Article 14. Law can be declared void if it is found
to have transgressed the constitutional limitations. The
legislature cannot declare any decision of a court of law to be
void or of no effect. It can remove the defects of the law pointed
out by the court or on coming to know of it aliunde; otherwise, a
court's decision must always bind unless the conditions on which
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it is based are so fundamentally altered that the decision could
not have been given in such altered circumstances. The
legislature can make a validating law. Making validation as such,
it removes the defect which the court finds in the existing law.
There cannot be an attempt to interfere with the judicial process,
and such law may be invalidated. [Para 24] [234-F-H; 235-A-B]
1.4 The impugned Ordinance indicates that it is a blatant
attempt of regularisation of admissions made which were declared
to be invalid not only by the High Court but by this Court after
this Court had dealt with the order dated 14.11.2016 passed by
the ASC after hearing the matter for several days and the Court
had passed a reasoned order. While dismissing/disposing of the
matters, this Court directed the 30 students who were illegally
deprived of the admission, to be admitted in the next academic
session 2017-18. It was clearly not a dismissal of the case in limine
but a reasoned order. In the writ petitions filed by the colleges
and others, the validity and legality of the order dated 14.11.2016
was questioned. However, this Court has upheld the same.
Voluminous records were filed in this Court by both the medical
colleges. The students were also heard when the decision was
rendered. Thereafter also several petitions were filed which were
dismissed by this Court. Thus, when this Court has upheld the
order dated 14.11.2016 on the ground of illegality and
irregularities and not following the due procedure, such
admissions could not have been regularised at all. The State
Government has exceeded its powers and has entrenched upon
the field reserved for the judiciary. It could not have nullified the
judgment. The online procedure was laid down by the judgment.
[Para 33] [251-G-H; 252-A-D]
1.5 What the State Government has done by way of
impugned Ordinance is not only impermissible and beyond
legislative competence it also has the effect of perpetuating
illegality and arbitrariness committed by the colleges in question
by not following the mandate of law laid down by the High Court
as affirmed by this Court. An effort has been made to cover up
the arbitrariness and illegality in an illegal and impermissible
manner for which the State Government had no competence. The
provisions made in the Ordinance are otherwise also quite illegal
MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS.
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and arbitrary besides in violation of the doctrine of separation of
powers enshrined under Article 50 of the Constitution of India.
[Para 34] [252-F-H]
Janapada Sabha Chhindwara v. The Central Provinces
Syndicate Ltd. and Anr. (1970) 1 SCC 509 : [1970] 3
SCR 745 ; Re: Cauvery Water Disputes Tribunal
(1993) 1 Suppl. SCC 96 (II) : [1991] 2 Suppl. SCR
497 ; State of Tamil Nadu and Ors. v. State of Kerala
and Ors. (2014) 12 SCC 696 : [2014] 12 SCR 875
- followed.
S.R. Bhagwat and Ors. v. State of Mysore (1995) 6 SCC
16 : [1995] 3 Suppl. SCR 545 ; S.T. Sadiq v. State of
Kerala and Ors. (2015) 4 SCC 400 : [2015] 3 SCR
287 - relied on.
Belgaum Gardeners Cooperative Production Supply
and Sale Society Ltd. v. State of Karnataka
(1993) 1 Suppl. SCC 96 : [1991] 2 Suppl. SCR 497;
State of Tamil Nadu and Ors. v. State of Kerala and
Ors. (2014) 12 SCC 696 : [2014] 12 SCR 875 Cheviti
Venkanna Yadav v. State of Telangana & Ors. (2017) 1
SCC 283 : [2016] 7 SCR 689 ; Goa Foundation &
Anr. v. State of Goa & Anr. (2016) 6 SCC 602 : [2016]
1 SCR 1025 ; Goa Glass Fibre Ltd. v. State of Goa &
Anr. (2010) 6 SCC 499 : [2010] 5 SCR 970 ; Tika Ram
& Ors. v. State of Uttar Pradesh & Ors. (2009) 10 SCC
689 : [2009] 14 SCR 905 - referred to.
2.1 Dismissal of a case by Supreme Court would remain a
dismissal by a non-speaking order where no reasons have been
assigned and no law has been declared by this Court. If an order
refusing to grant leave to appeal by a speaking order gives reasons
for refusing the grant of leave, then the order has two
implications; firstly the statement of law contained in the order is
a declaration of law by this Court within the meaning of Article
141 of the Constitution; secondly, other than the declaration of
law, whatever is stated in the order are the findings recorded by
this Court which would bind the parties thereto and also the
Court,Tribunal or Authority. [Para 35] [256-B-D]
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2.2 In the present case, all the parties have filed the
pleadings while the order was passed by this Court. Counter
affidavits, rejoinder and various other applications for taking on
record the documents and plethora of documents were submitted
before this Court and it was argued for several days at length.
This Court has heard the matter and thereafter has expressed
the opinion and recording finding as to the legality of the order
dated 14.11.2016. The SLPs against the order passed by the High
Court were also dismissed and this Court had directed that 30
students be admitted in the next session. Independent directions
were issued which were not ordered by the High Court. This
Court directed that they are to be admitted to the academic
session 2017-18. Thus, it is not correct to contend that it was not
a decision on merits by this Court. [Para 36] [256-D-E; 257-A-B]
Dr. Preeti Srivastava & Anr. v. State of M.P. & Ors.
(1999) 7 SCC 120 : [1999] 1 Suppl. SCR 249 ; Anitta
Job & Ors. v. The State of Kerala 2018 (6) SCALE 174
- held inapplicable
Kunhayammed & Ors. v. State of Kerala & Anr. (2000)
6 SCC 359 : [2000] 1 Suppl. SCR 538 - referred to.
3. In the present case, in view of the previous verdicts,
power u/Art. 142 of the Constitution cannot be exercised and
apart from that when the judgments have attained finality, they
are binding on all concerned including this Court. Power under
Article 142 cannot be exercised to nullify its own judgment and
to perpetuate illegality. [Para 39] [259-G]
Case Law Reference
[1970] 3 SCR 745
 followed
Para 17
[1991] 2 Suppl. SCR 497 followed
Para 23
[2014] 12 SCR 875
 followed
Para 24
[1995] 3 Suppl. SCR 545 relied on
Para 25
[2015] 3 SCR 287
 relied on
Para 26
MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS.
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[2016] 7 SCR 689
 referred to
Para 27
[2016] 1 SCR 1025
 referred to
Para 27
[2010] 5 SCR 970
 referred to
Para 29
[2009] 14 SCR 905
 referred to
Para 30
2018 (6) SCALE 174
 referred to
Para 31
[2000] 1 Suppl. SCR 538 referred to
Para 35
[1999] 1 Suppl. SCR 249 held inapplicable
Para 38
2018 (6) SCALE 174
 held inapplicable
Para 39
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 231 of 2018
Under Article 32 of the Constitution of India
WITH
Writ Petition (Civil ) No.178 of 2018.
Vikas Singh, Paramjit Singh Patwalia, Neeraj Kishan Kaul,
Kailasnath Pilla, Ms. M. Mohana, Ranjit Kr. Jaideep Gupta, Chander
Uday Singh, Sukumar Patjoshi, Vijay Hansaria, Sr. Advs., Raghavendra
S. Srivatva, Saurabh Agrawal, Anish R. Shah, Venkita Subramoniam
T.R., P. Sreekumar, Gaurav Sharma, Dhawal Mohan, Prateek Bhatia,
Abhishek, Ms. Deepika Kalia, Ms. Shristi Banerjee, Zulfiker Ali P.S.,
Faisal M. Aboobacker, Ms. Lakshmi Sree Puthenpurackal,
Ms. Divyanshu Kumar Srivastava, Viren Sibal, Ms. Vivekananda
B., Varun M., K. Gireesh Kumar, Alen Joseph, A. Karthik, G. Prakash,
Jishnu M.L., Mrs. Priyanka Prakash, Mrs. Beena Prakash,
Ms. Nayantara Roy, Ms. Anne Mathew, R.R. Kumar, Ms. Manjula Gupta,
Deepak Prakash, Vishal Somany, Subhash Chandran K.R., Ms. Sree
Devi, Ms. Yanmi Phazang, Raneev Dahiya, Kunal Singh, Nachiketa
Vajpayee, Subhash Choudhary, C.K. Sasi, Haris Beeran, Mushtaq Salim,
Usman Ghani Khan, Dev Prakash, Ms. Pallavi Pratap, Sumit Saurav,
Sachin Sharma, G.S. Makker, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. The question involved in the writ petition/
s is, whether the State of Kerala is competent to promulgate the Kerala
Professional Colleges (Regularisation of Admission in Medical Colleges)
Ordinance, 2017 (hereinafter referred to as "the Ordinance") notified
on 20.10.2017, which is intended to nullify judgments and orders of this
Court and encroaches upon the power of the judiciary.
2. The State of Kerala has promulgated the impugned Ordinance
for regularising the admission of 180 students who were illegally admitted
in the Kannur Medical College and Karuna Medical College run by
Prestige Educational Trust and Safe Development Alms Trust
respectively. The students were admitted to the said medical colleges in
the academic year 2016-17. After enquiry, it was found by the Admission
Supervisory Committee of the professional colleges (in short "the ASC")
that admissions were illegal. The decision was upheld by the High Court
of Kerala and by this Court.
3. The background facts are that on 28.4.2016, this Court in
Sankalp Charitable Trust v. Union of India & Ors. (2016) 7 SCC
487 directed that admissions to the MBBS/BDS courses shall be through
the National Eligibility-cum-Entrance Test (NEET). The ASC vide order
dated 4.8.2016 issued several directions to all the professional colleges
in the State of Kerala to conduct the admission process in compliance of
the directions laid down by this Court in Sankalp Charitable Trust
(supra). On 9.8.2016,the Central Government directed all the States and
Union Territories to conduct the combined/centralised counselling for
the academic year 2016-17 for admission in MBBS course in the
respective States/Union Territories, in line with the judgment passed by
this Court in the case of Modern Dental College & Research Centre
& Anr. v. State of M.P. & Ors. (2016) 7 SCC 353.
4. The Government of Kerala vide order dated 23.8.2016 directed
all the medical colleges to admit only those students who were selected
through common counselling. Writ Petition [Civil] No.28041 of 2016 was
filed in the Kerala High Court challenging the order dated 23.8.2016.
The High Court vide order dated 26.8.2016 issued interim directions that
MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS.
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the admissions in the MBBS course for the academic year 2016-17 shall
be conducted on the basis of the marks obtained in NEET, 2016 and all
applications will be made online to facilitate transparency with regard to
merit and identities of the applicants.
5. The ASC on 3.9.2016 after taking cognizance of the various
complaints received by it, issued directions to the private medical colleges
in Kerala to comply with the directions issued by it on 4.8.2016. It was
also mentioned that any student whose admission was made in
contravention of the directions issued by the ASC, will not be registered
by Kerala University of Health Sciences (KUHS). On 6.9.2016 and
9.9.2016, the ASC passed the orders with regard to the prospectus
submitted by Kannur and Karuna Medical Colleges approving the
prospectus subject to the exception that reservation of seats under the
management quota for the dependents of various trust associations was
unsustainable in law and could not be applied while admitting the students.
Questioning the same, said medical colleges filed W.P. No.30697/2016
and W.P. [C] No.30712/2016 in the Kerala High Court. The ASC vide
order dated 10.9.2016 observed that the explanation submitted by the
medical colleges was unsatisfactory and decided to revise the approval
of the prospectus and issued a revised admission schedule for the
aforesaid medical colleges whereby the date for submitting online
applications was revised and extended till19.9.2016.
6. After conducting an enquiry, the ASC issued an order dated
15.9.2016 with respect to Kannur Medical College observing that the
medical college had not called online applications as directed by the
ASC by its order dated 10.9.2016 and directed that the admissions made,
if any, shall stand cancelled.
7. The ASC passed another order after holding an enquiry on
15.9.2016 with respect to Karuna Medical College and held that the
portal for online was closed on 6.9.2016 and there was a contravention
of the directions passed by it in the order dated 10.9.2016 wherein the
revised date for submitting online applications was up to 19.9.2016. On
17.9.2016 the ASC passed yet another order addressed to all the medical
colleges situated in Kerala State, the directions issued by it were reiterated
and it was also directed that the directions be placed on the website of
the medical colleges forthwith. On 19.9.2016 the ASC further directed
the colleges to conduct all admissions strictly in compliance with the
directions which were issued by it from time to time.
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8. The High Court of Kerala by its order dated 23.9.2016 passed
in aforesaid writ petitions filed by the medical colleges approved the
decision taken by the ASC in respect of de-reservation of the management
quota seats which were reserved for the dependants of various Trust
associations, and issued various interim directions, keeping the writ
petitions pending. The order dated 23.9.2016 was questioned in this Court
in SLP [C] CC.Nos.19387-88/2016 - State of Kerala v. Safe
Development Alms Melamuri & Ors. which were dismissed and this
Court requested the High Court to decide the main writ petition as
expeditiously as possible.
9. This Court vide order dated 28.9.2016 passed in C.A. No.9862/
2016 - Union of India v. Sree Narayana Institute of Medical Sciences
& Ors. set aside the interim direction passed by the Kerala High Court
which allowed private medical colleges in the State of Kerala to conduct
their own counselling and directed to conduct the centralised counselling
for admissions in MBBS course for the academic year 2016-17. As the
last date was closed, this Court on 30.9.2016 passed an order in CA
No.9862/2016 - Union of India v. Sree Narayana Institute of Medical
Sciences & Ors. (supra) and extended the last date for admissions in
MBBS course from 30th September to 7th October 2016 so as to comply
with the order.
10. On 2.10.2016 separate orders were passed by the ASC
wherein it was observed that the respondent-medical colleges have
deliberately flouted the directions issued vide its orders dated 4.8.2016,
3.9.2016, 4.9.2016, 10.9.2016, 17.9.2016 and 19.9.2016. The ASC
cancelled all the admissions made by the respondent medical colleges in
the MBBS course for the academic year 2016-17. Aggrieved by the
order dated 2.10.2016 the respondent medical colleges filed W.P.
Nos.32186/2016 and 32185/2016 in the Kerala High Court. The Kerala
High Court vide its order dated 6.10.2016 was pleased to direct the
respondent medical colleges to place all the relevant records pertaining
to admission process before the Commissioner for Entrance Examination
(CEE) for verification. It was further directed that after verification of
the records the CEE shall finalise allotment of seats strictly on the basis
of interse merit and complete it by 7.10.2016.
11. On 7.10.2016, Kannur Medical College made a statement
before the Kerala High Court that no student turned up before the CEE
MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS.
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seeking admission in their college. On 13.10.2016 the Commissioner for
Entrance Examination (CEE) submitted its report concluding that the
procedure followed by Karuna Medical College was flawed and there
were material irregularities committed by it while admitting 30 students.
So far as Kannur Medical College was concerned, the representative of
the said college appeared before the CEE on 7.10.2016 at about 11.30
a.m. and left by 12.10 p.m. after furnishing the records. No explanation
or clarification was furnished by the representatives of the medical college,
and the conduct was noted by the CEE. The person who claimed to be
the representative of the college left immediately when he was asked to
furnish the letter of authorisation from the college authorities.
12. The Kerala High Court vide judgment and final order dated
28.10.2016 cancelled as many as 150 admissions made by Kannur Medical
College and 30 admissions made by Karuna Medical College through
'spot counselling'. The High Court of Kerala further directed the ASC
to decide the rival claims made by students of both the medical colleges
who had been admitted as well as the claims by other eligible students
who were parties before the court.
13. The ASC passed a reasoned order dated 14.11.2016 whereby
it quashed 150 admissions made in Kannur Medical College and ASC
has observed that applications were not received online:
"13. The ASC has scrutinized the 'online application' submitted
by the Medical College. Even a cursory look of the application
show that they are not actual 'online applications'. The forms do
not show the name of the Medical College to which the applications
were made. It doesn't carry photograph of the applicant. There
is no signature of applicant, either digital or scanned. There is no
application date. On the whole, the submitted applications only
shows that they have been prepared for the purpose of submitting
before the ASC as an attempt to claim online application system.
Even the documents submitted before the CEE on 07.10.2016, as
per the interim order of the Hon'ble High Court, these applications
were not seen submitted for consideration, as reported by CEE..."
14. On 15.11.2016, aggrieved by the common judgment dated
28.10.2016 passed by the Kerala High Court in the case of respondent
medical colleges i.e. Karuna Medical College, as well as Kannur Medical
College and the trusts -Safe Development Alms Trust and Prestige
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Educational Trust, filed SLP [C] Nos.32580-81/2016 and 35374-75/2016
before this Court. The MCI also filed SLP [C] Nos. 3882/2017 and
3952/2017. The students also petitioned this Court against the judgment
and order passed by the Kerala High Court.In the matter which was
filed by the colleges and the students, the order dated 14.11.2016 by the
ASC was also questioned and this Court after hearing learned counsel
for the parties for days together and after perusing the record which
was adduced before it, did not find it appropriate to interfere with the
order dated 14.11.2016. The colleges produced even those documents
which they did not produce before the CEE/ASC and after examining
all the documents, this Court declined to interfere in the matter vide
order dated 22.3.2017. This Court further directed that the 30 students
who were found eligible but were deprived of the admissions in Karuna
Medical College, shall be adjusted in the next academic session i.e. 201718 and the corresponding number of seats shall be reduced for the said
session for admissions. Review petitions were also filed which were
dismissed by this Court on 2.5.2017.
15. After the aforesaid controversy was set at rest by the judgment
of this Court, the State Government notified the impugned Ordinance on
20.10.2017 whereby admission of the students who were illegally admitted
in the MBBS course in the year 2016-17 in the said medical colleges,
were sought to be regularised. The Ordinance promulgated by the
Government of Kerala is extracted hereunder:
"THE
KERALA
PROFESSIONAL
COLLEGES
(REGULARISATION OF ADMISSION IN MEDICAL
COLLEGES) ORDINANCE, 2017)
Promulgated by the Governor of Kerala in the Sixty-eighth Year
of the Republic of India
 AN
 ORDINANCE
to provide for regularisation of admission of students in
certain medical colleges in the State during the academic year
2016-17
 Preamble- WHEREAS, the admission of certain students
in the discipline of medicine for the academic year 2016-17 was
MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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cancelled by the Admission Supervisory Committee of the State
for non-compliance of its orders by certain managements;
 AND WHEREAS, no fault was found on the part of any
student who got admission in such colleges;
 AND WHEREAS, the seats so cancelled are not allotted to
any other students;
 AND WHEREAS, it is expedient to provide for regularisation
of admission of students in such medical colleges in the State
during the academic year 2016-17;
 AND WHEREAS, the Legislative Assembly of the State of
Kerala is not in session and the Governor of Kerala is satisfied
that circumstances exist which render it necessary for him to
take immediate action;
NOW, THEREFORE, in exercise of the powers conferred by
clause (1) of Article 213 of the Constitution of India, the Governor
of Kerala is pleased to promulgate the following Ordinance: -
 BE it enacted in the Sixty-eighth Year of the Republic of India
as follows: -
I Short title and commencement-(1) This Ordinance may be called
the Kerala Professional Colleges (Regularisation of Admission in
Medical Colleges) Ordinance, 2017.
(2) It shall come into force at once.
2. Regularisation of admission in medical colleges.-
Notwithstanding anything contained in 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 (19 of 2006) or in any judgment, decree, order or any
proceedings of any court or the Admission Supervisory Committee
constituted under section 4 of the said Act or any other authority
or in any agreement or instrument made under any law for the
time being in force, it shall be lawful for the Government to
regularise the admission of candidates who were qualified for
admission in the discipline of medicine in any medical college in
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the State during the academic year 2016-17, but their admission
was cancelled by any court or Admission Supervisory Committee,
irrespective of the mode of submission of application and the nonproduction of any material before the Admission Supervisory
Committee, subject to such terms and conditions as the
Government may deem fit:
 Provided that such admission shall not be regularised unless
such candidate has duly attended the course during the said
academic year.
3. Procedure for regularisation.- (1) The managements of the
medical colleges who have admitted candidates as specified in
section 2 to the discipline of medicine in any medical college and
their admission was cancelled, may, within fifteen days from the
date of commencement of this Ordinance, apply for regularisation
of such admission.
(2) Every application for regularisation of admission under this
Ordinance shall be submitted to the Government through the
University concerned and the University shall, within seven days
of receipt of such application, forward the same to the Government
with a report containing its remarks on the following matters,
namely: -
 (i) whether the student who got admission is qualified and is
eligible as per the rank list prepared on the basis of the National
Eligibility cum Entrance Test, for admission in the discipline of
medicine as per laws and orders in force applicable for the
academic year 2016-17;
 (ii) whether the students as mentioned in the application has
duly attended the course during the academic year 2016-17;
 (iii) whether the student is otherwise eligible to continue the
course.
(3) An officer not below the rank of a Secretary to Government,
as may be authorised by the Government by special order in this
behalf, shall be the Competent Authority to consider an application
under this Ordinance. The Competent Authority shall have the
power to summon any person or to call for any document for the
proper disposal of such application.
MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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(4) On receipt of an application for regularisation under this section,
the Government shall call for a report on it from the Director of
Medical Education and after hearing the applicant and the
respondents or any other person concerned, if necessary, consider
the application and pass orders on it, including order for payment
of the regularisation fee payable under this Ordinance.
(5) Where the application is sanctioned by the Government, a
direction in this respect shall be issued to the University concerned
and notwithstanding anything contained in any University Act or
any statute or Ordinance made thereunder or in any other law for
the time being in force, the University shall issue orders necessary
for the enrolment of such students in the University and thereafter
such students shall be considered as regular students of the
discipline of medicine under the University with effect from the
academic year 2016-17 till the completion of their course in the
discipline.
Explanation. - For the purposes of this section, "University Act"
means an Act establishing a University, passed by the State
Legislature.
4. Matters for consideration of the Competent Authority. -
While considering an application for regularisation received under
Ordinance, the Competent Authority shall, -
(i) consider whether the student who got admission is qualified
and is eligible as per the rank list prepared on the basis of the
National Eligibility cum Entrance Test, for admission in the discipline
of medicine as per laws and orders in force applicable for the
academic year 2016-17;
(ii) confirm that no student is continuing in the college in violation
of any other law for the time being in force;
(iii) not consider the mode of application submitted by the students;
(iv) not consider the non-production of any document or any
material before the Admission Supervisory Committee;
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(v) ensure that no capitation fee was collected by the management;
(vi) ensure that there was no profiteering by the management.
5. Payment of regularisation fee: - (1) Where the Government
sanctions an application for regularisation of admission under this
Ordinance, the management of such medical college shall be liable
to pay a regularisation fee of three lakh rupees per student for
such regularisation:
 Provided that where any management collects such fee from
any student, such management shall be liable to pay a fine of six
lakh rupees per student.
(2) The competent authority under sub-section (3) of section 3
shall be competent to impose the fee as provided in sub-section
(1) and it shall be specified in the order issued under sub-section
(3) of section 3.
Date 20.10.2017
GOVERNOR"
16. Shri Vikas Singh, learned senior counsel appearing for the
MCI, urged that the Ordinance is ultra vires of the powers of the State
Government and is contrary to the various Constitution Bench decisions
of this Court which he has relied upon. He has further submitted that the
judgment has been nullified by the Ordinance. It is not that there was
any lacunae or flaw in the laws which has been removed. There is an
entrenchment by way of Ordinance upon the power of judicial review of
the court. This Court has adjudicated upon the legality of the order dated
14.11.2016 passed by the ASC which was questioned in this Court and
the entire material was filed in the Court which was not even placed
before the ASC/CEE. This Court granted hearing for several days and
on being wholly unconvinced, dismissed the special leave petitions and
clearly observed that no case for interference in the order dated
14.11.2016 passed by ASC was made out and further directed the
admission of 30 students who were illegally deprived of their admission
to be made in the next academic session. The State has no legislative
power to nullify a judgment in view of the Constitution Bench judgments
of this Court in Janapada Sabha Chhindwara vs. The Central
MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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Provinces Syndicate Ltd. and Anr. (1970) 1 SCC 509, Belgaum
Gardeners Cooperative Production Supply and Sale Society Ltd. v.
State of Karnataka (1993) Supp. 1 SCC 96, and State of Tamil Nadu
and Ors. v. State of Kerala and Ors.(2014) 12 SCC 696.
17. A galaxy of learned senior counsel appearing on behalf of the
respondents has emphasised that the impugned Ordinance intends on
the admissions to be given on merits on the basis of performance in the
NEET examination. Thus, it was permissible to enact Ordinance to make
a scrutiny whether the candidates were eligible for admission on the
basis of their merit in the NEET examination. It was also contended that
the order of online applications passed by the Kerala High Court was
based upon the consent. Hence, it could not be termed to be an order
passed by the court in judicial review. The decision did not have the
effect of judicial precedent which could be said to be nullified by way of
the Ordinance. It was also contended that ultimately it was not the fault
of the students and if there was any procedural violation committed by
the medical colleges in question, the students could not have been made
a scapegoat or made to suffer for no fault of theirs. They were not
heard by the ASC or CEE. This Court may exercise power under Article
142 of the Constitution of India and no interference is required to be
made in the Ordinance as in the facts and circumstances, regularisation
of the admissions was clearly permissible. It could not be said that the
State Government has tried to usurp the power of judicial review.
18. A bare reading of the Ordinance makes it clear that the same
aims at regularisation of admissions of students during the academic
year 2016-17 which were set aside by the ASC, the High Court and by
this Court to benefit only two colleges and students in question. It is also
stated in it that the Legislative Assembly of the State of Kerala is not in
session and the Governor of Kerala is satisfied, the circumstances render
it necessary for him to take immediate action. In exercise of the power
conferred under clause (1) of Article 213 of the Constitution of India,
the Governor of Kerala is pleased to promulgate the impugned Ordinance.
19. It is provided in clause 2 of the Ordinance that notwithstanding
anything contained in the Kerala Professional Colleges or Institutions
(Prohibition of Capitation Fee, Regulation of Admission, Fixation of Nonexploitative Fee and other measures to ensure equity and excellence in
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Professional Education) Act, 2006 or in any judgment, decree, order or
any proceeding of any court or the Admission Supervisory Committee
or any other authority or in any agreement or instrument made under
any law for the time being in force, it shall be lawful for the Government
to regularise the admission of candidates who were qualified for
admission in the discipline of medicine in any medical college in the
State during the academic year in question, though their admissions had
been cancelled by any court or ASC, and irrespective of the mode of
submission of application and the non-production of any material before
the ASC.
20. Clause 3 of the impugned Ordinance contains the procedure
for regularisation. Under clause 3(1) the students can apply within 15
days from the commencement of the Ordinance for regularisation of
such admission. Under clause 3(2), the application shall be submitted to
the Government through the University with the remarks whether the
student was qualified, eligible as per the rank list prepared on the basis
of the NEET for admission in the discipline of medicine as per the laws
and orders in force for the academic year 2016-17; whether he has
attended the course during the academic year 2016-17 and whether the
student was otherwise eligible to continue the course. Clause 3(4) enables
the Government to consider the application and pass orders on it including
the order for payment of the regularisation fee payable under the
Ordinance and clause 3(5) provides that where the application is
sanctioned by the Government, the student shall be considered as regular
student w.e.f. the academic session 2016-17 till the completion of their
course in the discipline. Clause 3(4)(i) provides for consideration in case
the candidate was eligible as per the rank list prepared on the basis of
NEET, and no student was continuing in the college in violation of any
other law for the time being in force. Clause 4(iii) further provided for
regularisation notwithstanding the mode of submission of applications by
the students. Regularisation fee of Rs.3 lakhs was to be paid per student
for such regularisation.
21. What has been done by the impugned Ordinance by the State
Government is clearly entrenching upon the field of judicial review and it
was obviously misadventure resorted to. In our considered opinion, it
was not at all permissible to the State Government to promulgate the
Ordinance/legislate in the matter. Not only the judgment of the court is
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nullified and the arbitrariness committed in admissions was glaring, and
the decision of the High Court of Kerala which was affirmed by this
Court with respect to applications to be entertained if they were online
applications has been undone. It was clearly an act of nullifying judgment
and is violative of judicial powers which vested in the judiciary. It was
not open for the State Government to nullify the judgment/orders passed
by the Kerala High Court or by this Court. It was not a case of removal
of a defect in existing law. Various Constitution Bench decisions of this
Court have settled the principles of law governing the field. It passes
comprehension how the State Government has promulgated the
Ordinance in question.
22. In Janapada Sabha Chhindwara vs. The Central Provinces
Syndicate Ltd. and Anr. 1970(1) SCC 509, a Constitution Bench of this
Court has observed that it is not open to legislation to render a judgment
ineffective. It is open to the Legislature within certain limits to amend
the provisions of an Act retrospectively and to declare what the law
shall be deemed to have been, but it is not open to the legislature to say
that the interpretation of the law shall be otherwise than as declared by
the Court. This Court has observed thus:
"10. The nature of the amendment made in Act 4 of 1920 has not
been indicated. Nor is there anything which enacts that the
notifications issued without the sanction of the State Government
must be deemed to have been issued validly under Section 51(2)
without the sanction of the Local Government. On the words used
in the Act, it is plain that the Legislature attempted to overrule or
set aside the decision of this Court. That, in our judgment, is not
open to the Legislature to do under our Constitutional scheme. It
is open to the Legislature within certain limits to amend the
provisions of an Act retrospectively and to declare what the law
shall be deemed to have been, but it is not open to the Legislature
to say that a judgment of a Court properly constituted and rendered
in exercise of its powers in a matter brought before it shall be
deemed to be ineffective and the interpretation of the law shall be
otherwise than as declared by the Court."
23. In the matter of Cauvery Water Disputes Tribunal(1993)
Supp.