Kannur Medical & Dental College (Run by Prestige Educational Trust) v. State of Kerala and The Commissioner for Entrance Examinations

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935 ## **WP(C).No. 19149 of 2013 (P)** ## **PETITIONER:** KANNUR MEDICAL & DENTAL COLLEGE, (RUN BY PRESTIGE EDUCATIONAL TRUST), ANJARAKANDY-PO, KANNUR, REPRESENTED BY ITS MANAGER. BY ADVS.SRI.GEORGE POONTHOTTAM SRI.T.R.RAVI ## **RESPONDENTS:** - 1.STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, THIRUVANANTHAPURAM-695001. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **WP(C).No. 19149 of 2013 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** EXT.P1 TRUE COPY OF THE LETTER NO.PET/KGOV/KMCKDC/220113-1 DATED 22-1-2013 EXT.P2 TRUE COPY OF THE COMMUNICATION NO.KMCGOVK/210413-2 DATED 21-4-2013 EXT.P3 TRUE COPY OF THE LETTER NO.PET-GOVK-(CM)210413-3 DATED 28-5-2013 EXT.P4 TRUE COPY OF THE LETTER NO PET-GOVK-(CM)210413-3 DATED 28-5-2013 GIVEN TO THE IST RESPONDENT EXT.P5 TRUE COPY OF THE COMMUNCATION NO.KMC/ASC/MBBS-2013/010613-1 DATED 1-6-2013 - EXT.P6 TRUE COPY OF THE PROSPECTUS PUBLISHED BY THE PETITIONER FOR THE MBBS COURSE ON 30.5.2013. - EXT.P7 TRUE COPY OF THE PROSPECTUS PUBLISHED BY THE PETITIONER FOR THE BDS COURSE ON 7-6-2013 EXT.P8 TRUE COPY OF THE LETTER NO.PET-GOVK-KMCKDC/210413-4 DATED 5-7-2013. - EXT.P9 TRUE COPY OF THE COMMUNICATION NO.KMC/ASC/MBBS-2013/010613-5 DATED 8-7-2013 EXT.P10 TRUE COPY OF THE GOVERNMENT LETTER NO.17936/S1/2013/H&FWD DATED 19-6-2013. ## **RESPONDENT'S' EXHIBITS** : - ANNEXURE R1(a) TRUE COPY OF G.O.(Rt)NO.2022/13/H&FWD DATED 12.06.13. - ANNEXURE R1(b) TRUE COPY OF G.O.(Rt) NO.1974/13/H&FWD DATED 7.6.2013. //TRUE COPY// AHZ/ ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** ## **---------------------------------------------------W.P.(C) NO.19149 OF 2013 P ---------------------------------------------------Dated this the 2[nd] day of August, 2013** ## **JUDGMENT** ## **K.T.Sankaran, J.** The petitioner, Kannur Medical and Dental College, is run by the Prestige Educational Trust. It is stated that the Trust is formed by the members of Sunni Muslims for the upliftment of the community. The Trust is conducting nine Higher Educational Institutions which includes a Medical and Dental College. It is submitted that 150 seats are provided in the College for MBBS Course and 50 seats are provided for BDS Course. 2. The petitioner Management is not part of any consortium of Self Financing College Managements. 3. The petitioner desired to enter into an agreement with the Government for seat sharing and in the matter of fixing of tuition fee ## **W.P.(C) NOS.19149 OF 2013 P** :: 2 :: for MBBS and BDS Courses, in the same manner as the one entered into between the Government and the Kerala Christian Professional College Managements Federation (hereinafter referred to as the 'Managements Federation'). As per the agreement entered into between the Government and the Managements Federation, uniform fee was fixed for the 85% seats, excluding 15% NRI seats. The petitioner also expressed their willingness to enter into such an agreement providing uniform fee to the 85% seats and representations were made to the Government for that purpose. However, the Government was not willing to execute any agreement with the petitioner for seat sharing and to fix uniform fee for 85% of the seats. 4. Placed in this situation, the petitioner has filed this Writ Petition for the following reliefs: “(i) Issue a writ declaring that there is no justification in the conduct of the 1[st] respondent in refusing to accept the offer made by the petitioner as the inaction in that regard results in discrimination. ## **W.P.(C) NOS.19149 OF 2013 P** :: 3 :: - (ii) Issue a writ of mandamus directing the 2[nd] respondent in include the petitioner college for options for the academic year 2013-14 for the MBBS and BDS course offered in the petitioner college. - (iii) Pass such other order or direction as this Court may deem fit and proper in the interest of justice.” 5. On behalf of the first respondent a statement is filed by the Deputy Secretary, Health and Family Welfare Department, in which, it is stated thus: “4. As per Annexure R1(a) and R1(b), 50% seats are to be filled up from Government merit list and 50% seats are to be filled up by the Management. Out of this 50% management seats, 15% are NRI seats. It is further stated in R1(a) that as per the agreement 14% of students admitted under 50% Government merit seats coming under BPL category as per State norms/fixed by Government need to pay an amount Rs.23,000/- only as tuition fee for BDS Courses. 26% of students admitted under 50% Government seats are earmarked for SEBC category students who have to pay annual tuition fee of Rs.44,000/-. 10% of the 50% seats are earmarked for SC/ST category and their fee will be paid by ## **W.P.(C) NOS.19149 OF 2013 P** :: 4 :: Government which will be fixed later by Government. All other candidates under 50% Government seats have to pay an annual tuition fee of Rs.1,50,000/-. It is further stated in Annexure R1(a) that, out of the 50% Management seats, 35% students will pay an annual tuition fee of Rs.4,25,000/- and 15% NRI students will pay an annual tuition fee of Rs.5,00,000/- with an interest free refundable deposit of Rs.3,00,000/-. Regarding the MBBS Courses, the BPL category students and the students coming under SEBC status have to pay an annual tuition fee of Rs.25,000/-. The students who come under the Government merit quota other than SEBC and BPL have to remit the fee of Rs.1,65,000/-. At the same time, the Management shall be entitled to collect uniform annual tuition fee of not more than Rs.7,00,000/- plus Rs.5,00,000/- as interest free deposit from the students under the Management quota. The Management is also entitled to collect an annual tuition fee of Rs.10,50,000/- from NRI students. All these clauses are stipulated on the basis of the terms and conditions of the agreement. All Private Self Financing Dental Colleges except (1) PMS College, Vattappara, (2) KMCT College, Kozhikode and (3) Kannur Dental College, Kannur has entered into agreement with Government on the above fee structure under the All Kerala Self Financing Dental College Management Consortium. Likewise, regarding the admission of MBBS Courses except ## **W.P.(C) NOS.19149 OF 2013 P** :: 5 :: Kannur Medical College and Karuna Medical College, Palakkad has not entered into agreement with the Government accepting the above terms and conditions.” 6. The respondents justify the fixing of uniform fee structure for all the 85% seats in the professional colleges under the Kerala Christian Professional College Managements Federation. It is pointed out that the Managements Federation was not in agreement for seat sharing for the past several years and only in 2012-2013, they agreed to have an agreement for seat sharing with the Government. Accordingly, the offer made by the said Federation was accepted. 7. The petitioner was ready and willing to execute an agreement with the Government for seat sharing. Their only demand was that the tuition fee should be at uniform rate for all the students except those coming under 15% NRI quota. It was pointed out that such an offer was accepted by the Government in the case of Managements Federation and Dr.Somerwell Memorial Medical College. According to the petitioner, there was no justification for ## **W.P.(C) NOS.19149 OF 2013 P** :: 6 :: applying a different yardstick for the petitioner and giving preferential treatment to other managements. 8. In answer, the respondents stated thus in paragraph 6 of the statement: “6. There are altogether 1,150 BDS seats in the State in Private Self Financing Sector which includes 100 seats each in KMCT, PMS College and Kannur Dental College. All the above colleges were in agreement with Government for fixing two different fee structure for Government seats as well as Management seats till 2012-13. By fixing the different fee structure for Government and Management seats, Government could fix a fee almost at par with Government Dental Colleges in 40% seats. If Government agrees with the request of Kannur Dental College, KMCT Dental College and PMS Dental College, Vattappara, other Dental Colleges under the consortium may also follow their path whereby the number of students who can be admitted on a fee at par with Government rate of fee will be reduced considerably. This will affect the policy and efforts of the Government to provide higher educational facilities for the meritorious students of the State at a fee at par with Government fee. This would put ## **W.P.(C) NOS.19149 OF 2013 P** :: 7 :: Government into an embarrassing situation. Therefore, Government have decided not to accede their request in the larger interest of the students and the public.” 9. The acceptability or otherwise of the explanation given in paragraph 6 of the statement is not a matter for consideration in the present Writ Petition. Even if it is to be found that the explanation is not acceptable, that is not a ground for granting the reliefs as prayed for by the petitioner, since the Court cannot issue a writ of mandamus directing the Government to enter into an agreement with the petitioner for seat sharing. However, we hasten to add that if the explanation offered in paragraph 6 of the statement is true, there is no reason why a uniform fee was agreed upon by the Government in the case of Managements Federation. Nobody can be compelled to enter into an agreement. So far as the Government is concerned, that is a matter in the realm of taking policy decisions by the Government. But the policy decisions should be just, fair and reasonable and there should not be any attempt to apply different yardsticks in the case of different managements. A policy decision taken by the Government is normally beyond challenge under Article ## **W.P.(C) NOS.19149 OF 2013 P** :: 8 :: 226 of the Constitution of India. However, there are certain well accepted principles and precedents in the matter of interfering with the policy decisions taken by the Government. It is not necessary to consider those aspects in the present Writ Petition, since even if it is found that the policy decision taken by the Government is liable to be questioned, that does not entitle the petitioner to get a writ of mandamus issued to compel the Government to enter into an agreement with them. 10. The next question to be considered is what will happen if no agreement is executed between the petitioner and the Government for seat sharing and what method should be adopted in the matter of admission to the Medical and Dental Colleges run by the petitioner. In this context, the principles of law laid down by the Supreme Court are quite relevant. In **T.M.A.Pai Foundation** v. **State of Karnataka ((2002) 8 SCC 481)** , the Supreme Court held thus: “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, ## **W.P.(C) NOS.19149 OF 2013 P** :: 9 :: 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. .......... ............. 56. ....... It has, therefore, to be left to the institution, if it chooses 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.” ## 11. In **P.A.Inamdar** v. **State of Maharashtra** ((2005) 6 SCC 537), the Supreme Court held thus: ## **W.P.(C) NOS.19149 OF 2013 P** :: 10 :: “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 submission 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 T.M.A.Pai Foundation v. State of Karnataka ((2002) 8 SCC 481) nor in the Constitution Bench decision in Kerala Education Bill, 1957 (AIR 1958 SC 956) which was approved by T.M.A.Pai Foundation v. State of Karnataka ((2002) 8 SCC 481) 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 ## **W.P.(C) NOS.19149 OF 2013 P** :: 11 :: 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 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. 126. The observations in para 68 of the majority opinion in _Pai Foundation_ on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in _Pai Foundation_ if read ## **W.P.(C) NOS.19149 OF 2013 P** :: 12 :: in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and nonminorities can be forced to submit to seat-sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter-comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in _Pai Foundation_ ) in our considered opinion, observations in para 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give freeships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the educational needs of the weaker and poorer sections of the society. 127. Nowhere in _Pai Foundation_ either in the majority or in the minority opinion, have we found any justification for imposing seat-sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats. ## **W.P.(C) NOS.19149 OF 2013 P** :: 13 :: 128. We make it clear that the observations in _Pai Foundation_ in para 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. 129. In _Pai Foundation_ it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.” 12. Act 19 of 2006 was enacted taking into account the decisions of the Supreme Court and also the past experiences in the State. The constitutional validity of Act 19 of 2006 was challenged in **Lisie Medical and Educational Institutions** v. **State of Kerala (2007(1) KLT 409).** A Division Bench of this Court struck down Section 3 and certain other sections and Rules 10 and 11 of the ## **W.P.(C) NOS.19149 OF 2013 P** :: 14 :: Rules framed under Act 19 of 2006. The matter is now pending before the Supreme Court. Since no agreement is executed between the petitioner and the Government for seat sharing, the Government have no right to say that the Management has no right to regulate and decide the procedure for admission. The learned counsel for the petitioner submitted that for admission, a fair, transparent and non-exploitative procedure would be adopted by the petitioner. 13. There is a mechanism under Act 19 of 2006 to supervise the entire process of selection and admission of candidates in the Professional Colleges. It is made clear that the Admission Supervisory Committee would have jurisdiction to intervene, if it is found that the admission of candidates in the petitioner's Colleges is not fair, transparent and merit based. It is also made clear that the Government would have no jurisdiction to interfere with the admission in the petitioner's Colleges only on the ground that uniform fee is being collected from the candidates under 85% of the seats, other than NRI seats. It is also made clear that this judgment ## **W.P.(C) NOS.19149 OF 2013 P** :: 15 :: would not bar either the petitioner or the Government from entering into an agreement at a later point of time. The Writ Petition is disposed of as above. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/