Dr. Padiyar Memorial Homeopathic Medical College, Chottanikkara v. State of Kerala (WP(C).Nos. 16637/2014 & 26604/2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940** ## **WP(C).No. 16637 of 2014** ## **PETITIONER:** **DR.PADIYAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE CHOTTANIKKARA, REPRESENTED BY ITS SECRETARY R.GOINATH NAICK.** **BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI SMT.S.SUDHA (ERNAKULAM)** ## **RESPONDENTS:** |**NTS**<br>**:**|| |---|---| |**1**|**STATE OF KERALA**| ||**REP.BY ITS CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM-**| ||**695001.**| |**2**|**THE STATE INFORMATION COMMISSION**| ||**KERALA, PUNNAN ROAD, THIRUVANANTHAPURAM-695001.**| |**3**|**SMT.S.N.SHOBHA**| ||**AGED 54 YEARS**| ||**W/O.SADASIVA SHENOY, KALARIKKAL, SHIVALAYAM, 2ND CROSS ROAD,**| ||**THAMMANAM, KARANAKODAM, PINM 682032.**| |**4**|**DR.SANU MUKUNDAN**| ||**S/O.K.S.MUKUNDAN, KONKERIL HOUSE, ERAMALLUR P.O., CHERTHALA-**| ||**688524.**| ||**BY ADVS.**| ||**SRI.M.AJAY, SC**| ||**SRI.VARGHESE P.CHACKO**| ||**SMT.RASHMI-GP**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2018, ALONG WITH WP(C).26604/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _WP(C).Nos. 16637/2014 & 26604/2018_ _2_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940** **WP(C).No. 26604 of 2018** ## **PETITIONER:** **DR. PADIYAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE CHOTTANIKKARA, REPRESENTED BY ITS SECRETARY R.GOPINATHA NAICK.** **BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI SRI.M.ASHOK KINI** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE(J) DEPARTMENT, THIRUVANANTHAPURAM-695 001.** - **2 THE STATE INFORMATION COMMISSION KERALA PUNNEN ROAD, THIRUVANANTHAPURAM-695 001,REPRESENTED BY THE COMMISSION SECRETARY.** - **3 THE CHIF INFORMATION COMMISSIONER STATE INFORMATION COMMISSION, KERALA,PUNNEN ROAD, THIRUVANANTHAPURAM-695 001.** - **4 THE PRINCIPAL AND CONTROLLING OFFICER GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, IRANIMUTTOM,THIRUVANANTHPURAM-695 001.** - **5 DR.SREEKUMARI.K. W/O.ANIL KUMAR, 5/247A, THOPPIL HOUSE,THATHODATHU LANE, MEKKARA P.O., MARKET ROAD,THIRUPUNITHURA, ERNAKULAM-682 801. BY ADV. SRI.VARGHESE P.CHACKO SRI. M.AJAY- SC,SMT.K.M.RASHMI-GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.11.2018, ALONG WITH WP(C).16637/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _WP(C).Nos. 16637/2014 & 26604/2018_ _3_ ## **J U D G M E N T** These two writ petitions have been filed by Dr.Padiyar Memorial Homeopathic Medical College, Chottanikkara, which is stated to be a 'Trust' registered under the provisions of the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act. 2. According to the petitioners, they come within the sweep of Article 29(2) of the Constitution of India, since the management of the institution is a linguistic minority and that they are running a homeopathic hospital along with the Homeopathic College completely within the requisites of the Homeopathic (minimum standard of education) Regulation 1983 and under the supervision and control of the Central Counsel of Homeopathy. 3. The petitioners however, concedes that even though this institution began its life as an 'Independent Trust', pursuant to a Government order, dated 25.04.2000, which was issued consequent to an agreement executed by the institution with the government, the Direct Payment System was _WP(C).Nos. 16637/2014 & 26604/2018_ _4_ introduced, as per which the salaries and emoluments of all the staff of the college and hospital were taken over by the Government. The petitioners, however, say that even though the Direct Payment System has been introduced and admittedly the entire salary with respect to staff and employees of the college are now being met by the Government, the institutions still would not come within the sweep of Section 2(h) of the Right to Information Act, 2005 ('Act' for short) and that it cannot be construed to be a Public Authority within the ambit of the said Act. They say that the competent Authorities under the Right to Information Act, however, has found to the contrary and such orders are being impugned in these writ petitions, since they are legally not tenable and contrary to the provisions of the afore mentioned Section. 4. I have heard Smt.R.Ranjini, the learned counsel appearing for the petitioners in both cases; Sri.M.Ajay, the learned standing counsel appearing for the State Information Commission and Smt.K.M Rashmi, learned Government Pleader appearing for 1[st] respondent in W.P.(C)No.16637 of 2014 and respondents 1 and 4 in W.P.(C)No **.** 26604 of 2018. _WP(C).Nos. 16637/2014 & 26604/2018_ _5_ 5. Smt.R.Ranjini, commenced her submission by saying that even though the college is being financed by the Government to a limited extent by paying salary and emoluments to its employees and staff, the institutions are not substantially controlled or substantially financed by the Government, so as to make it a Public Authority under the provisions of the Act. She says that all the amounts that are required for the upkeep of the institution, including for the creation of infrastructure, buildings and such other, are met by the 'Trust' from their own resources and she asserts that even the treatment of patients in the hospital is free. She therefore, says that since the amounts expended by the 'Trust' for the purpose of running the institutions are much larger than the amounts received by them under the Direct Payment System as salary and emoluments to their staff, the provisions of Section 2(h) of the RTI Act cannot be apply in the case of the petitioners. 6. Even though I hear Smt.R.Ranjini as afore, I am cognizant that similar issues were considered by this Court in a _WP(C).Nos. 16637/2014 & 26604/2018_ _6_ series of cases, culminating in the judgment reported as **V.S.Lee v. State of Kerala (2010 (1) KHC 64),** wherein a learned Division Bench answered it contrary to the submissions made on behalf of the petitioners herein. In fact, going by the relevant paragraphs of the said judgment, it becomes indubitable that identical contentions raised by the parties therein that, the college building, land etc. being owned by the respective Educational Institution, the mere payment of salaries and allowances for maintenance of buildings would not be decisive to hold that the Aided Colleges are substantially financed by the funds provided by the Government, were repelled. After doing so, in paragraph 15 of the said judgment, it was held as under. “ In the backdrop of the facts noticed above, an aided private college is a body substantially financed by funds provided, directly or indirectly, by the State Government. It is also a body controlled by the State Government in relation to various aspects, predominantly the financial aspect. The huge funding that is extended by the State Government and by the University Grants Commission through the State Government and the Universities are regulated and controlled by the State Government. The Government controls the utility of the huge funds provided by it. Therefore, the finding in the impugned judgment that an aided private college is a body controlled and substantially financed, directly or indirectly, by funds provided by the Government of Kerala is only to be upheld. We do so.” _WP(C).Nos. 16637/2014 & 26604/2018_ _7_ 7. The judgment, thereafter, went on to exhaustively consider the impact of the phraseology in Section 2(h) and then traveled through the concepts of “Instrumentalities of Government” and finally concluded that it is not merely the instrumentalities which answer the definition of 'State' in Article 12 of the Constitution, which is covered by the Act, but that it would also take in and encompass institutions that are invested with public duties and functions and those through whom substantial funds under the control of the appropriate Government flow, with the sole expectation that it would be utilized for the common goal and never otherwise. The judgment affirmatively states thereafter, that the only guidance available from the preamble to the RTI Act is that the instrumentalities who became accountable are all those through whom the substantial funds under the control of the appropriate Government flow out with the sole expectation that it would be utilized for the common good and never otherwise. 8. Sri.M Ajay, the learned standing counsel for the State Information Commission - the 2[nd] respondent in both _WP(C).Nos. 16637/2014 & 26604/2018_ _8_ these cases, say that the facts noticed by their lordships in **V.S Lee** (supra) and facts involved herein are in para materia and therefore, that the conclusions in the said judgment should apply to these cases also. He says that all the contentions now raised by Smt.R.Ranjini were noticed and answered by the Division Bench in said judgment and he calls my attention to paragraph 12 of the said judgment, which reads as under: “12. The Articles of Agreement entered into between the Government of Kerala and an Educational Agency under the Direct Payment Scheme provides, among other things, in clause 20 thereof, that the Government shall disburse, directly through the Principal of the institution, to the teaching and non-teaching staff of the institution, the pay and allowances due to them and which accrue from 1.9.1972. Clause 28 provides that the Government shall pay the Educational Agency a Grant towards contingency expenditure for each academic year and the Grant for each college or group of colleges shall be fixed by Government, calculated on a per capita figure with a ceiling, both to be worked out and fixed for each category of students with reference to the courses; Pre-Degree, Degree and Post Graduate in Arts and Science. Clause 29 provides that the Government shall pay the Educational Agency, every academic year, a Grant towards maintenance and repairs for each college or group of colleges calculated on the basis of a per capita figure with the help of the public works Department, with a ceiling to be worked out and fixed by Government separately with reference to the Arts Section and the Science Section, Junior Classes, Degree Classes and Post Graduate Classes. In terms of clause 30, the Government shall pay a Grant towards library and laboratory based on the norms worked out in consultation with the Universities.” _WP(C).Nos. 16637/2014 & 26604/2018_ _9_ 9. The learned counsel says that in the backdrop of the afore situation, the petitioners in these cases cannot escape from their obligations under the RTI Act, since they are also substantially financed by the Government, as was noticed in the case in **V.S Lee** (supra). 10. Smt.R.Ranjini, in answer to the afore submissions of Sri.Ajay, submits that she has raised her specific contentions in these writ petitions, as is available from 'Ground S' in W.P. (C)No.26604/2018, that even though the Direct Payment System agreement between the petitioners' institutions and the Government contains provisions for various payments, as was noticed in the afore extracted Section of the judgment in **V.S Lee** (supra), the said amounts are yet to be received and that the Government has yet not paid any such amounts to the institutions. She therefore, says that the judgment in **V.S Lee** (supra) can be completely distinguished from the facts that are available in these cases. 11. When I assess the submissions of Smt.Ranjini, the essential question that I must decide is whether the amounts that are now expended by the Government under the Direct _WP(C).Nos. 16637/2014 & 26604/2018_ _10_ Payment System can be said to be substantial, so as to bring the institutions under the ambit of Section 2(h). One of the tests that I can safely engage in such scenario is to find out if the institutions would survive, if this component of the salaries and emoluments paid by the Government is taken away and if the institutions would still survive. Smt.Ranjini concedes that these institutions cannot survive without this component of the amounts contributed by the State and I am therefore, prima facie impelled to the opinion that when the amounts that are paid by the Government is inevitable and indispensable for the institutions for its existential purposes, that cannot be seen to be anything other than being substantial. Of course, this is only one of the tests that would be relevant, the other would be as to whether the amounts now given by the Government would be quantitatively substantial in the context of the actual expenditure incurred by the institutions, which can be seen only from their balance sheets. 12. Further, even though the Government may be paying only certain amounts towards the actual salary and components it could also be that the Government is _WP(C).Nos. 16637/2014 & 26604/2018_ _11_ contributing otherwise than in cash through various other sources and methods for the upkeep of the institutions. This also certainly can be substantial financing. 13. That apart, the fact that the direct payment agreement between the institutions and the Government provide for various other payments, which may or may not have been received by the institutions as of now, would also lead to the inescapable conclusion that there is substantial financial commitment by the State, because if these commitments are not honoured by the Government, the institutions would always obtain the legal locus to claim them through a process of law. 14. Even though the position of law is as afore, it is not possible for this Court to consider the contentions of Smt.Ranjini with respect to the actual finances and resources of the institutions, based on their financial papers including the balance sheets. This is perhaps something that can be done by the State Information Commission under the provisions of the RTI Act and even though I am certain that, prima facie, the judgment of **V.S Lee** (supra) would apply in these cases also, it _WP(C).Nos. 16637/2014 & 26604/2018_ _12_ would be a rebuttable presumption available to the petitioners to be established before the State Information Commission by cogent and reliable evidence. Since I am not in a position, while I act under Article 226 of the Constitution of the India, to enter into the realms of fiscal documents and examination of the same, I deem it appropriate to grant an opportunity to the petitioners to impel their contentions on this singular issue before the State Information Commission appropriately, so that they can also have look at the documents and papers that the petitioners may place before them and take a decision as per the provisions of the Act. I am guided to this exercise also for the reason that I see from the pleadings that such an exercise was never engaged in by the Authorities under the RTI Act, before this writ petition had been filed before this Court, perhaps because, such documents were never made available to the said Authorities. 15. In the afore circumstances, though I am prima facie of the view that the judgment in **V.S Lee (** supra **)** applies in full force to the facts of these cases also, I deem it appropriate to allow latitude to the petitioners to approach the State _WP(C).Nos. 16637/2014 & 26604/2018_ _13_ Information Commission with cogent and reliable evidence to prove otherwise by demonstrating from their fiscal papers that the financial contribution of the State to them is not substantial. 16. I make it clear that the State Information Commission shall advert to the specific views and observations of the Division Bench in **V.S Lee** (supra) and then decide, based on the documents and materials to be produced before them by the petitioners, as to whether they would be entitled to be exempted from the RTI Act on the basis of the specific factual circumstances, if any, noticed by them. 17. With the sole intention if facilitating this process, but without conclusively entering into the merits of Ext.P1 in W.P.(C)No.26604/2018 **,** I grant liberty to the petitioners to place before the State Information Commission all germane and reliable materials, including their fiscal papers and to cogently establish to the contrary as has been held in **V.S Lee** (supra). The State Information Commission will consider these materials and decide the matter afresh, after affording an opportunity of being heard as per the mandate of the RTI Act, as expeditiously as possible but not later than two months from the date of _WP(C).Nos. 16637/2014 & 26604/2018_ _14_ receipt of a copy of this judgment. 18. I clarify that I have chosen not to quash Ext.P1 order in W.P.(C)No.26604/2018 since I have not considered its merits conclusively, but that the State Information Commission will be at liberty to modify it, if the petitioners herein are able to rebut the presumption and establish that the conclusion in **V.S Lee** (supra) are not applicable to them. This writ petition is thus ordered. **Sd/-** **DEVAN RAMACHANDRAN** rp-26.11 **JUDGE** _WP(C).Nos. 16637/2014 & 26604/2018_ _15_ ## **APPENDIX OF WP(C) 16637/2014** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE PHOTOCOPY OF THE AGREEMENT DATED 24.1.2000.** **EXHIBIT P2 THE PHOTOCOPY OF THE GOVERNMENT ORDER DATED 25.4.2000. EXHIBIT P3 THE TRUE COPY OF THE APPLICATION DATED 8.1.2014 SUBMITTED BY THE 3RD RESPONDENT. EXHIBIT P4 THE TRUE COPY OF THE REPLY DATED 31.1.2014. EXHIBIT P5 THE TRUE COPY OF THE NOTICE DATED 14.5.2014. EXHIBIT P6 THE TRUE COPY OF THE STATEMENT FILED IN THE APPEAL FILED BY THE 3RD RESPONDENT. EXHIBIT P7 THE TRUE COPY OF THE ORDER DATED 29.5.2014. EXHIBIT P8 THE TRUE COPY OF THE APPLICATION DATED 8.2.2013.** **EXHIBIT P9 THE PHOTOCOPY OF THE REPLY TO EXT.P6 DATED 13.2.2013. EXHIBIT P10 THE PHOTOCOPY OF THE NOTICE DATED 23.3.2013. EXHIBIT P11 THE PHOTOCOPY OF THE NOTICE DATED 11.6.2014.** _WP(C).Nos. 16637/2014 & 26604/2018_ _16_ ## **APPENDIX OF WP(C) 26604/2018** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: THE PHOTOCOPY OF THE ORDER DATED 30.06.2018 PASSED BY THE 2ND RESPONDENT.** **EXHIBIT P2: THE PHOTOCOPY OF THE AGREEMENT DATED 24.01.2000 EXECUTED BY THE PETITIONER WITH THE GOVERNMENT OF KERALA.** **EXHIBIT P3: THE PHOTOCOPY OF THE GOVERNMENT ORDER DATED 25.04.2000.** **EXHIBIT P4: THE PHOTOCOPY OF THE APPLICATION SUBMITTED UNDER THE RIGHT TO INFORMATION ACT.** **EXHIBIT P5: THE PHOTOCOPY OF THE APPLICATION SUBMITTED UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P6: THE PHOTOCOPY OF THE APPLICATION SUBMITTED UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P7: THE PHOTOCOPY OF THE JUDGMENT DATED 27.2.2018 IN WRIT PETITION NO.6577/2018. EXHIBIT P8: THE PHOTOCOPY OF THE ORDER DATED 29.5.2014 PASSED BY THE 2ND RESPONDENT. EXHIBIT P9: THE PHOTOCOPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 11.6.2014. EXHIBIT P10: PHOTOCOPY OF THE ORDER DATED 01.07.2014 PASSED BY THIS HON'BLE COURT IN W.P.16637/2014. EXHIBIT P11: THE PHOTOCOPY OF THE NOTICE DATED 01.07.2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P12: THE PHOTOCOPY OF THE PROCEEDING DATED 24.11.2014 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P13: THE PHOTOCOPY OF THE COMMUNICATION DATED 11.12.2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P14: THE PHOTOCOPY OF THE NOTICE OF THE 2ND RESPONDENT COMMISSION DATED 18.12.2014. EXHIBIT P15: THE PHOTOCOPY OF NOTES DATED 23.05.2018 SUBMITTED BEFORE THE 2ND RESPONDENT. EXHIBIT P16: THE PHOTOCOPY OF THE COMMUNICATION DATED 24.05.2014 SUBMITTED BY THE PETITINER BEFORE THE 4TH RESPONDENT.** _WP(C).Nos. 16637/2014 & 26604/2018_ _17_