Dr. A.K.B Sadbhavana Mission Trust v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 17TH DAY OF JULY 2014/26TH ASHADHA, 1936** ## **WP(C).No. 24187 of 2009 (P)** **----------------------------** ## **PETITIONER :** **--------------------** **DR.A.K.B SADBHAVANA MISSION TRUST, SARADHA HEALTH CENTRE, KOYILANDY REPRESENTED BY ITS MANAGER DR.SANU JOHN KOVOOR AGED 37 YEARS, S/O.K.A. ELIAS** **BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD** ## **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM.** **2. THE PRINCIPAL & CONTROLLING OFFICER, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, TRIVANDRUM.** **R1 & R2 BY GOVT. PLEADER SMT. K.A. SANJEETHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2014, THE COURT ON 17-07-2014 DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 24187 of 2009 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE ORDER DATED 17/2/2004 ISSUED BY THE 1ST RESPONDENT. EXT.P2 COPY OF THE SAID NOTIFICATION ISSUED BY THE 1ST RESPONDENT. EXT.P3 COPY OF THE INSPECTION REPORT SUBMITTED BY THE EXPERT COMMITTEE TO THE 1ST RESPONDENT. EXT.P4 COPY OF THE ORDER DATED 24/8/2004 IN WP(C) NO. 24592/2004. EXT.P5 COPY OF THE ORDER DATED 20/12/2004. EXT.P6 COPY OF THE JUDGMENT DATED IN WA NO. 960/2005 OF THIS HON'BLE COURT. EXT.P7 COPY OF THE ORDER DATED 6/7/2005 ISSUED BY THE 1ST RESPONDENT. EXT.P8 COPY OF THE INTERIM ORDER DATED 25/10/2005 IN WP(C) NO. 27538/2005 OF THIS HON'BLE COURT. EXT.P9 COPY OF THE ORDER DATED 26/2/2007 IN CCC NO. 14/2007 OF THIS HON'BLE COURT. EXT.P10 COPY OF THE JUDGMENT DATED 5/3/2007 IN THE WRIT PETITION NO. 27538/2005. EXT.P11 COPY OF THE ORDER DATED 16/7/2007 IN CCC NO. 1034/2007 OF THIS HON'BLE COURT. EXT.P12 COPY OF THE ORDER DATED 7/8/2008 IN WP(C) NO. 12556/08 OF THIS HON'BLE COURT.** **(Contd...)** ## **WP(C).No. 24187 of 2009 (P)** |**EXT.P13**|**COPY OF THE JUDGMENT DATED 20/3/2009 IN WP(C) NO.**| |---|---| ||**12556/08 AND CONNECTED CASE OF THIS HON'BLE COURT.**| |**EXT.P14**|**COPY OF THE DRAFT AGREEMENT PREPARED AND**| ||**PRODUCED BY THE RESPONDENTS IN WP(C) NO. 12556/08**| ||**AND REFERRED TO IN THE JUDGMENT IN THE SAID CASE.**| |**EXT.P15**|**COPY OF THE LAWYER NOTICE DATED 7/4/2009 ISSUED TO**| ||**THE RESPONDENT.**| |**EXT.P16**|**COPY OF THE ORDER DATED 24/6/2009 OF THE 1ST**| ||**RESPONDENT ALONG WITH THE DRAFT AGREEMENT**| ||**ISSUED BY THE RESPONDENTS TO THE PETITIONER ALONG**| ||**WITH THE SAME.**| |**EXT.P17**|**COPY OF THE ORDER DATED 23/12/2005 IN WP(C) NO.**| ||**27538/2005.**| |**EXT.P18**|**COPY OF THE ORDER NO. GO (RT) NO. 4284/2010/H&FWD**| ||**DATED 30/10/2010.**| |**EXT.P19**|**NIL**| |**EXT.P20**|**NIL**| |**EXT.P21**|**COPY OF THE G.O.(RT) NO. 3453/2011/H&FWD DATED**| ||**1/10/2011**| |**EXT.P22**|**COPY OF THE LETTER DATED 10/12/2013 ISSUED BY THE**| ||**GOVERNMENT TO THE PETITIONER.**| |**EXT.P23**|**COPY OF THE LETTER DATED 16/12/2013 ISSUED BY THE**| ||**PETITIONER TO THE GOVERNMENT.**| |**EXT.P24**|**COPY OF THE LETTER DATED 29/10/2013 SENT BY THE**| ||**PETITIONER TO THE 1ST RESPONDENT.**| |**EXT.P25**|**COPY OF THE LETTER DATED 29/10/2013 SENT BY THE**| ||**PETITIONER TO THE 2ND RESPONDENT.**| **(Contd...)** **WP(C).No. 24187 of 2009 (P)** **EXT.P26 COPY OF THE LETTER DATED 5/12/2013 SENT BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P27 COPY OF THE COVERING LETTER DATED 13/3/2014 SENT BY THE PETITIONER TO THE 2ND RESPONDENT FOR FORWARDING THE SSLC CERTIFICATES.** ## **RESPONDENT'S ANNEXURES :** **ANNEXURE R2(a) : INSPECTION REPORT DATED 26.10.2009.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- W.P.(C) No.24187 of 2009 --------------------------------------------Dated this the 17[th] day of July, 2014 ## **JUDGMENT** Certain clauses in Ext.P16 are under challenge in this writ petition. The said clauses inter alia provide that the Government is entitled to make selection to 50% of the seats in the petitioner's institution and prescribes the mode and method in the matter of selection of students by the Government. It also imposes the requirement of approval of the prospectus and fees by the Government. The petitioner alleges that those restrictions would interfere with the right of the petitioner to evolve a selection process and to fix a reasonable fee structure by itself which are the facet of the right of administration of the institution. 2. In the year 2004, the Government decided to WPC No.24187/2009 2 start Nurse-cum-Pharmacist course in Homoeopathy as a self financing course. The petitioner alleges that it was the only institute qualified for starting such a course in the selection process conducted by the Government and accordingly as desired and directed by the Government, the petitioners made all arrangements and increased the infrastructure and staff strength to satisfy the requirements for starting the course. However, as no formal orders were issued by the Government, the petitioner approached this Court by filing WPC No.24592/2004 and in compliance with the direction in the said writ petition, sanction was accorded to the petitioner to start the course. The petitioner was compelled to prefer another round of litigation which resulted in Writ Appeal No.960/2005 before this Court on account of certain hurdles caused by the State. When the petitioner was about to commence the course, the Government as per Ext.P7 order dated 6.7.2005 _inter alia_ held that the selection of WPC No.24187/2009 3 students would be made by the Government. The said order was challenged by the petitioner by filing WPC No.27358/2005. In that writ petition, this Court, as per Ext.P8 order dated 25.10.2005, permitted the petitioner to fill up 50% of the seats and directed the second respondent to forward the students to the balance 50% seats. As the second respondent did not commence the selection process to the 50% seats as directed to be filled up by them, the petitioner moved an I.A. in WPC No.27538/2005 and this Court issued another order dated 23.12.2005 permitting the petitioner to complete the selection to the remaining 50% also (Ext.P17). Later, WPC No.27538/2005 was disposed of as per Ext.P10 judgment upholding the right of the petitioner to evolve its own selection procedure and to make admission to 100% students to the institution. As per Ext.P11 order dated 16[th] July 2007 in COC No.1034/2007, the petitioner was permitted to commence the course from Ist August WPC No.24187/2009 4 2007. However, as the agreement was not executed by the respondents even after the aforesaid date, the petitioner again approached this Court with Writ Petition No.12556/2008. The students who have undergone the course have approached this Court with WPC No.28845/2008 for a direction to the respondents to conduct the examination. These cases were disposed of as per Ext.P13 judgment wherein this Court has re-iterated the right of the petitioner to evolve a selection procedure and to make admission of students by itself and directed the respondents to modify Ext.P14 agreement in tune with Exts.P10 and P13 judgments. In Ext.P10 judgment, this Court had directed the respondents to conduct the examination after executing such an agreement. 3. The present grievance of the petitioner is that the respondents, in defiance to the judgments of the Apex Court in _**TMA Pai Foundation**_ v _**State of Karnataka**_ (2002(8 SCC 481), _**Islamic**_ WPC No.24187/2009 5 _**Academy of Education**_ v _**State of Karnataka**_ (2003) 6 SCC 697 and _**P.A.Inamdar**_ v _**State of Maharashtra**_ (2005) 6 SCC 537) as well as in Exts.P10 and P13 judgments, had issued Ext.P16 imposing untenable conditions in the agreement. 4. As pointed out at the outset, it is provided in Ext.P16 that the Government is entitled to make selection to 50% of seats. It also provides that in the matter of selection, the prescription of the mode and method of selection shall be done by the Government. It also provided that the prospectus and fee structure has to be approved by the Government. This, according to the petitioner, interferes with the right guaranteed under Article 19 (1)(g) of the Constitution of India. It is with this background the petitioner has come up before this Court. 5. In the counter affidavit filed by the State, they have contended as follows: a) As per G.O.(MS) No.193/2009/H&FWD dated WPC No.24187/2009 6 24.6.2009, the Government have approved a draft agreement to be executed with the petitioner institution and on 5.10.2009 the agreement was executed by the Management with the 2[nd] respondent, the Principal & Controlling Officer on behalf of Government. The said agreement is very much in effect since October 2009 and the Management has not been able to get a verdict in their favour till date. As per clause 6 of the agreement the educational Agency shall set apart 50% of the seats for being filled up by the Government or such authority determined by the Government on the basis of merit and reservation principle followed by the Government and the remaining 50% are to be filled by the educational agency on the basis of merit. Therefore, the petitioner Institution is eligible only to fill 50% of the seats and if they are given the opportunity to fill all seats the principle of reservation would be jeopardized and the opportunity for admission to WPC No.24187/2009 7 the course would be denied to the weaker section. b) WPC No.32936/2011 has been disposed of by this Court on 5.6.2013 and as per the verdict the right of the trust to continue the NCP course was rejected. c) 2011-2012 batch admission procedures were complete and students were admitted to the course by the management violating the clause (4) of the agreement which states that the educational agency shall make selection to the NCP course with the prior approval of the 2[nd] respondent and no communication was sent to the 2[nd] respondent regarding the admission process of 2011-2012 batch. Thus, the Government had been deprived of the chance for filling 50% seats in Government quota in 2011-2012 batch admission. The only fact communicated to the office of the 2[nd] respondent was that the batch had completed the course. d) The Government had taken a decision to permit the petitioner Trust to continue the course WPC No.24187/2009 8 under the present terms and conditions during the year 2013-2014 also till the Government commences the NCP course and the matter had been communicated to the Supreme Court also. As per Letter No.21006/J2/13/H&FWD dated 26.10.2013 government intimated the above decision to Law Officer, Kerala house, New Delhi. In the circumstances, the SLP (c) 25059/2013 was disposed of by the Hon'ble Supreme Court in accordance with the above decision of the Government vide judgment dated 28.10.2013. The stand taken by the Government to allow the course was rather constructive and the petitioner Institution was also expected to reciprocate with the same gesture regarding the admission to the 50% seats owned by Government as per agreement. After obtaining the judgment of Hon'ble Supreme Court in SLP(C) 25059/2013, the Management on 25.11.2013 had informed he Government that they have commenced the classes for 2013-2014 batches of NCP course on WPC No.24187/2009 9 25.11.2013 and requested to provide students to be filled up through Government quota. On receiving the said letter the Government on good intention to provide 50% students to be filled from Government quota informed the petitioner institution that Government sponsored students will be provided as per the agreement within 30 days vide Ext.P22 letter and directed the 2[nd] respondent to take urgent steps to fill the student in the Government quota as per letter dated 10.12.2013. In the mean time the 2[nd] respondent had reported that they had requested the petitioner institution to inform their opinion about the fee to be fixed in he Government Seat vide letter No.4062/C3/13/GHMCT dated 11.12.2013 to which the petitioner has not responded till date. e) Though the petitioner institution claimed that they have completed the selection process and admitted the students as per the agreement, they are conveniently suppressing the fact that they had not followed the conditions of clause (4) and acted WPC No.24187/2009 10 disregarding the condition of clause (2) that the Management should submit the list of students admitted with their mark sheets of SSLC examination within 15 days of the last date of admission. There has been no information from the Management later also about the details of admitted batch of students which indicates that they have not yet started the classes and are waiting on expectation that 50% of Government seat share can also be filled by themselves through court directions as was done in previous years. Ext.P23 document produced by the Management is a letter written to the Secretary, Health & Family Welfare Department on 16.12.2013, and no copy earmarked to the office of the 2[nd] respondent, which has to make admissions to the Government quota. The agreement executed by the Management with the Government had been signed by the Principal and Controlling Officer representing the Government and not by Secretary of Health & Family Welfare Department. The Management had WPC No.24187/2009 11 submitted the draft prospectus for 2012-2013 admission on 29.10.2013 at the office of the 2[nd] respondent. As there were various omissions and errors in the draft prospectus, the petitioner Institution was directed by 2[nd] respondent to rectify the errors in the draft prospectus and to withhold all admission procedures till getting the Government approval for the prospectus. But the petitioner Institution has not responded to the directions of the 2[nd] respondent and violated clause 5 of the agreement. The 2[nd] respondent had sent a letter to the Management on 11.12.2013 for their opinion on the fee to be fixed for Government seats. On 13.12.2013, 2[nd] respondent has forwarded a draft prospectus for 50% Government seats for Government approval which could not be finalized for want of opinion of the petitioner regarding fees to be charged in the Government seats. Till now no communication was received from the Management regarding the proposed fee structure. So the defiant WPC No.24187/2009 12 attitude of the Management, and the complete violation of the clauses related to admission procedures and non-compliance to directions from PCO has been the reason for the non-filling of Government seats. Where the Management secures permission for filling up of all seats depriving the financially poor and meritorious students to study the NCP course which has high rate of job opportunity in the Government sector. As the petitioner Trust is the only institution in the state conducting the NCP course, there are a lot of aspirants to study the course. f) As per clause 6 of the agreement between Management and Government in the agreement 50% of admission to seats in the institution is the right of the government which has to be filled up by Government on the basis of merit and reservation principle. So, the Government must be given the right to complete the admission for 50% seats due to the government to prevail social justice and WPC No.24187/2009 13 Management cannot demand to do it within their time frame as officially, they are yet to get approval for prospectus 2013-2014 and has to give an opinion on the fee structure for government seats. The 2[nd] respondent has forwarded a draft prospectus for admission to 50% Government seats for the approval of the Government and the same is being finalized by Government and Government sponsored students can be allotted within a reasonable time frame if the Management intimates their opinion to the 2[nd] respondent on the fees to be fixed in the 50% seats due to Government. The Management has to comply with Government directions and facilitate the Government procedure for selections of candidate to Government quota instead of demanding for full quota of seats. It is an unfair demand which cannot be allowed on the grounds of social justice and legality. g) The petitioner is not entitled for getting an order as granted by this Court vide I.A.No.614/2014 WPC No.24187/2009 14 dated 24.1.2014. The Government is ready and willing to provide sufficient number of candidates to be filled in the vacancy, if the petitioner is ready to comply with the conditions as narrated above. Otherwise legal rights of poor and eligible students in the State will be affected badly. This will ruin the spirit of the entire educational policy of the State itself. 6. The petitioner filed a reply affidavit denying the allegations in the counter affidavit. It was alleged that the petitioner had executed an agreement dated 5.10.2010 under protest and subject to the result of the writ petition. 7. The allegation that the petitioner conducted 2011-2012 admission and conducted the course in violation of clause-4 of the agreement and depriving the Government to fill up 50% seats in the Government quota in 2011-2012 was denied. It was pointed out that as evident from Ext.P21, the Government granted sanction for conducting the WPC No.24187/2009 15 course in 2011-2012 and thereafter as the Government failed to provide students to 50% seats, the petitioner was constrained to file I.A.No.19204/2011 in which this Court permitted the petitioner to fill up those seats also. The averment that the Government conceded the continuance of the NCP course by the petitioner before the Apex Court on the expectation that the petitioner would reciprocate the same by giving 50% seats to the Government was also denied. According to them, the Government have no right to demand 50% seats or any portion thereof in a self financing institution. 8. It was further stated that after the judgment of the Supreme Court dated 28.10.2013, the petitioner addressed both the respondents with prospectus on 29.10.2013 itself. True copies of the letters so sent are produced as Exts.P24 and P25. It was further contended that the authorised officers of the Government approved the prospectus. Thereafter Ext.P22 letter was also issued by the WPC No.24187/2009 16 Government to the petitioner regarding filling up of 50% seats by the Government. 9. It was pointed out that only for the purpose of creating some confusions and in an attempt to delay the selection process, a letter dated 5.12.2013 was sent by the second respondent to the petitioner suggesting some irrelevant amendments. A copy of the said letter is produced as Ext.P26. 10. According to the petitioner, the terms and conditions of selection and fees to the prospectus for the year 2013-2014 has been the same as in the case of previous years. The fee collected was only Rs.24,500/-; it was contended. The allegation that after the admission process for the year 2013-2014, the petitioner discarded the conditions in the agreement and did not submit the list of students with the mark sheets within 15 days was also denied. According to the petitioner, the petitioner obtained the copy of the interim order dated 24.1.2014 of this Court only on 29.1.2014 and thereafter the petitioner WPC No.24187/2009 17 has completed the entire selection process as stipulated in the agreement. In support of the same, the petitioner has produced Ext.P27 which is the true copy of the covering letter dated 13.3.2014 sent by the petitioner to the second respondent forwarding the SSLC certificates of students admitted for verification. The allegation that the Government could not fill up the Government seats on account of the defiant attitude of the Management and violation of the clauses relating to admission procedure was also denied. ## 11. Arguments have been heard. 12. The main challenge of the petitioner is regarding the inclusion of clauses 2, 4, 5 and 6 of the contract agreement appended to Ext.P16 G.O. ## 13. Clause-2 reads as follows: 2. The minimum marks required for admission of students to the Nurse-cum-Pharmacists course is fixed as 60% and above or Grade B and above for those in Grading System in SSLC or equivalent examination. For arriving at the index mark in the order of merit, the pattern adopted for Plus 1 WPC No.24187/2009 18 admissions in schools having State curriculum with addition of weightage for Science will be followed. The list of students admitted vide their index marks and copies of mark sheets in the SSLC examination shall be submitted to Government within 15 days of last date of admission/date of execution of this agreement.” ## 14. Clause-4 reads as follows: “In the meantime the petitioner prepared his own draft agreement (Ext.P6) and forwarded the same to the 2[nd] respondent (Principal & Controlling Officer, Government Homoeopathic Medical College, Thiruvananthapuram) vide his letter No.01/08/AKB's dated 7.1.08 addressed to the 2[nd] respondent (Ext.P7). He had also filed WP(C) No.12556/2008 before the Hon'ble High Court of Kerala praying for a direction commanding the respondent therein to return the duplicate of Ext.P6 agreement after duly executed the same by the 2[nd] respondent. Kum.Gayathri Devi T.R. and 3 others had also filed WP(C) No.28845/08 before the Hon'ble High Court praying for a direction to the respondents therein requiring to conduct examination for the Nurse-cum- WPC No.24187/2009 19 Pharmacist Course 2007-08 completed by the petitioners on 22.8.2008 and to declare the result of the examination within a maximum period of 30 days of the last date of the examination in accordance with Ext.P6 prospectus issued by the Educational Agency viz. The Dr.AKB's Mission trust (3[rd] respondent). ## 15. Clause 5 reads as follows: “The Educational Agency shall prepare and forward draft prospectus for the course detailing the course fee and mode of selection, for approval to the Principal & Controlling Officer, Government Homoeopathic Medical College, Thiruvananthapuram and the same will be published in the month of June, every year and classes will commence on the Ist of August every year.” ## 16. Clause -6 reads as follows: The Educational Agency shall set apart 50% of the seats for being filled up by Government or such authority determined by Government on the basis of merit and reservation principles followed by the Government and the remaining 50% filled WPC No.24187/2009 20 by the educational agency on the basis of merit.” 17. According to the learned counsel for the petitioner, inclusion of those clauses reserving 50% of seats for selection by the Government, prescription of the mode and method in the matter of selection by the Government as well as the requirement of approval of the prospectus and fees by the Government amounts to interference with the right of the petitioner to evolve its own selection process and to fix a reasonable fee structure by itself which are the facet of the right of administration of the institution. 18. According to the learned counsel for the petitioner, the aforesaid clauses offends the dictum laid down by the Apex court in _**TMA Pai Foundation**_ v _**State of Karnataka**_ (2002(8 SCC 481), _**Islamic Academy of Education**_ v _**State of Karnataka**_ (2003) 6 SCC 697 and _**P.A.Inamdar**_ v _**State of Maharashtra**_ (2005) 6 SCC 537). It was also pointed out that it was against Exts.P10 and P13 judgments of WPC No.24187/2009 21 this Court. In Ext.P10 judgment in WPC Nos.27538/2005 and 34657/2006, a learned Single Judge of this Court observed as under: “The learned counsel for the petitioner pointed out that by virtue of the consistent decisions of the Supreme Court in _**TMA Pai Foundation**_ v _**State of Karnataka**_ (2002(8) SCC 481), _**Islamic Academy of Education**_ v _**State of Karnataka**_ (2003 (6) SCC 697) and _**P.A.Inamdar**_ v _**State of Maharashtra**_ (2005(6) SCC 537), management's right to fix fees is settled in their favour. The next issue covered by the above decisions is their right to make selection for admission, where the Supreme Court has held that it should be done in a fair and reasonable manner. Following the above judgments, the petitioner's entitlement to fix the fees and their right of selection for admission in a reasonable manner are upheld. In so far as the minimum qualification is required, petitioner has represented to Government to take a realistic approach in the matter because if selection is from students, who secured first class in SSLC, there will be shortage of students for admission to the course. This original petition is accordingly disposed of with a direction to the first respondent to decide the question of qualification and dates for commencement of course.” WPC No.24187/2009 22 19. Ext.P13 is the judgment in WPC No.12556/2008 and 28845/2008. In Ext.P13, this Court was satisfied that an agreement has to be executed and it will have to be in confirmity with the judgment in WPC No.27538/2005 (Ext.P10). It was observed that the said judgment (Ext.P10) has upheld the right of the petitioner to admit the students and devise a method of selection and to fix a reasonable fee structure. At the same time Ext.P13 judgment has upheld the right of the Government to fix the minimum qualification of the students to be admitted to the course. 20. It was further observed that the petitioner had no objection in accepting 60% marks in the SSLC as the minimum required. Therefore, it was observed that the Government's power to fix the minimum qualification and the power to conduct the examination and supplementary examination with the aid of the Examination Board will have to be accepted by the petitioner. 21. In this writ petition also, there is no quarrel WPC No.24187/2009 23 by the petitioner against the aforesaid power of the Government. This Court in Ext.P13 judgment accepted the argument of the petitioner that the approval by the Government for the course in question need not be renewed from year to year. This Court was of the view that once the institution is established and the course offered by it is approved, then the renewal of the approval every year brings about an element of uncertainty and would also instill an unnecessary anxiety in the minds of the students. Therefore, it was observed that it would suffice if the Government makes it clear that the approval is liable to be withdrawn, if any one of the conditions which is imposed by it and it would be legitimately made part of the agreement to be executed by the Government are not complied with. Therefore, in Ext.P13, it was directed that the objections raised by the petitioner in relation to certain clauses in the agreement be taken note off by the Government and revised agreement be forwarded to the petitioner, keeping in WPC No.24187/2009 24 mind the observations in Ext.P13 and the declaration made by this Court in the judgment in WPC No.27538/2005. 22. The argument of the learned counsel for the petitioner is that the inclusion of the clauses referred to above are in utter disregard to the directions contained in Exts.P10 and P13 judgments. 23. It is relevant to note that without prejudice to the right to contest the validity of the aforesaid clauses, the petitioner has executed the agreement appended to Ext.P16 in the present form. The pertinent question is whether the clauses now challenged by the petitioner need be allowed to stand. 24. As already pointed out, the clauses aforementioned are objectionable in the light of the observations made by the Apex Court in _**TMA Pai Foundation**_ v _**State of Karnataka**_ (2002(8) SCC 481), _**Islamic Academy of Education**_ v _**State of Karnataka**_ (2003 (6) SCC 697) and _**P.A.Inamdar**_ v _**State of**_ WPC No.24187/2009 25 _**Maharashtra**_ (2005(6) SCC 537). In _**TMA**_ Pai's case, the ## Apex Court observed as under: .......... 38. The scheme in _Unni Krishnan_ case has the effect of nationalizing education in respect of important features viz. The right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair nor reasonable. Even in the decision in _Unni Krishnan case_ it has been observed by Jeevan Reddy, J. at p. 749, para 194, as follows : “194. The hard reality that emerges is that private educational institutions are a necessity in the present-day context. It is not possible to do without them because the governments are in no position to meet the demand - particularly in the sector of medical and WPC No.24187/2009 26 technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions - including minority educational institutions - too have a role to play”. ......... 40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness. ............ 50. The right to establish and administer broadly comprises the following rights: a) to admit students; b) to set up a reasonable fee structure; c) to constitute a governing body; d) to appoint staff (teaching and nonteaching); and e) to take action if there is dereliction of duty on the part of any employees. ..... 53. With regard to the core components of the rights under Articles 19 and 26(a), it must WPC No.24187/2009 27 be held that while the State has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their choice, subject to an objective and rational procedure of selection and the compliance with conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships, if not granted by the Government. Further more, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students. In any event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the State or the university concerned. It will, however, be objectionable if the State retains the power to nominate specific individuals on governing bodies. Nomination by the State, which could be on a political basis, will be an inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same reasons, WPC No.24187/2009 28 nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restriction on the autonomy of the private unaided educational institution. 54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. ...... 56. An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose WPC No.24187/2009 29 sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it choses not to seek any aid from the government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government. 57. We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition WPC No.24187/2009 30 “charitable”, it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.” 25. The observations made by the Apex Court in paragraphs 6 and 7 of the decision in _**Islamic Academy of Education's case**_ are also relevant. The relevant paragraphs read as follows: 6. In view of the rival submissions, the following questions arise for consideration: (1) Whether the educational institutions are entitled to fix their own fee structure; (2) Whether minority and non-minority educational institutions stand on the same footing and have the same rights; (3) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and WPC No.24187/2009 31 (4) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission. ## **Question 1** 7. So far as the first question is concerned, in our view the majority judgment is very clear. There can be no fixing of a rigid fee structure by the Government. Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. _They must also be able to generate surplus which must be used for the betterment and growth of that educational institution._ In paragraph 56 of the judgment it has been categorically laid down that the decision on the fees to be charged must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the Government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course, there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgment WPC No.24187/2009 32 imparting of education is essentially charitable in nature. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise. As at present, there are statutes/regulations which govern the fixation of fees and as this Court has not yet considered the validity of those statutes/regulations, we direct that in order to give effect to the judgment in _T.M.A.Pai case_ the respective State Governments/concerned authority shall set up, in each State, a Committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative of the Medical Council of India (in short “MCI”) or the All India Council for Technical Education (in short “AICTE”), depending on the type of institution, shall also be a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the Committee. The Committee should be free to nominate/co-opt another independent person of repute, so that the total number of members of the Committee shall not exceed five. Each educational institute must place before this Committee, well in advance of the academic year, WPC No.24187/2009 33 its proposed fee structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the Committee for their scrutiny. The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the Committee shall be bind for a period of three years, at the end of which period the institute would be at liberty to apply for revision. Once fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g. Donations, the same would amount to charging of capitation fee. The Governments/ appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalised and also face the prospect of losing its recognition/affiliation. 26. Later, in _**P.A.Ianamdar's case**_ , the Apex Court observed as under:- WPC No.24187/2009 34 124. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of a difference between non-minority and minority unaided educational institutions. We find great force in the submissions made on behalf of the petitioners that the States have no power to insist on seat-sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement the State's policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit. 125. As per our understanding, neither in the judgment of _Pai Foundation_ nor in the Constitution Bench decision in _Kerala Education Bill_ which was approved by _Pai Foundation_ is there anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalisation of seats which has been specifically disapproved in _Pai Foundation_ . Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting WPC No.24187/2009 35 serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.” 27. This Court, therefore, is of the opinion that the terms in Ext.P16 to the extent it interferes with the right of the petitioner to make selection of the students and to fix the fee structure is totally illegal and arbitrary. Ext.P16 to the extent it proposes to fill up 50% seats by the Government or such authorities as determined by the Government is totally illegal and without jurisdiction as it interferes with the right of the petitioner and its members to carry on the WPC No.24187/2009 36 occupation guaranteed under Article 19(1)(g) of the Constitution of India. 28. It is relevant to note that the petitioner is a registered public Trust created for the benefit and upliftment of Scheduled Caste and Scheduled Tribe, especially, in the field of education and is entitled for the benefit, privilege and protest under Article 15(4) and 46 of the Constitution of India. 29. As observed by the Apex Court in the above mentioned cases, the Government has no right to control admission in unaided institutions so as to compel them to give up any share of the seats to the candidates selected by the State. Therefore, the attempt of the Government in this regard in Ext.P16 is totally illegal and violative of Article 19 of the Constitution of India and also the law declared by the Apex Court. In Ext.P13 judgment, this Court has directed the respondents to modify Ext.P14 agreement to bring the same in conformity with Exts.P10 and P13 judgment. This direction has been WPC No.24187/2009 37 violated while drafting Ext.P16 agreement. It is undertaken by the petitioner in the writ petition that the petitioner is prepared to give education to the SC/ST students selected by them either on consistency basis or without fees depending upon the financial conditions of the candidates. However, the respondents are not entitled to implement its reservation policy in the matter of selection of students in the petitioner's institution. Ext.P16 order to the extent it deals with the right of the petitioner to select the students for admission and also to fix the fee structure is totally illegal. 30. As rightly pointed out by the learned counsel for the petitioner that other self financing institutions in the State conducting various professional courses in Nursing and Pharmacy are adopting their own process of selection and fixing the fee for the course themselves. 31. It is relevant to note that the first respondent has accepted the method of selection and WPC No.24187/2009 38 fee structure in those institution. The petitioner alone is singled out and is subjected to hostile treatment which is violative of Article 14 of the Constitution of India. On a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioner is entitled to get the relief as prayed for. Therefore, this writ petition is allowed. It is hereby declared that the petitioner is entitled to evolve its own fair selection process for selecting the students for admission to Nurse-cumPharmacist course in Homoeopathy in its institution and to select the candidates for the said course and to fix reasonable and fair fee structure for the same. Ext.P16 is quashed to the extent it contravenes the right of the petitioner to evolve its own fair selection process to select and admit all the students to the institution and also to fix the fee structure for the next coming Pharmacist course in the Homoeopathy institution. WPC No.24187/2009 39 The respondents are directed to delete the clauses, especially, the last sentence of clause-2, clause 4, clause-5 and clause-6 to the extent it provides for the Government to make selection to 50% seats, prescribes the mode and method by the Government in the matter of selection of students and imposes the requirement of approval of the prospectus and the fees by the Government. The respondents are directed to modify the agreement accordingly and execute the same without any further delay. **Sd/-A.V.RAMAKRISHNA PILLAI** css/ true copy ## **P.S.TO JUDGE**