Lakshmi Rajendran v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE SHIRCY V. TUESDAY, THE 26TH DAY OF JUNE 2018 / 5TH ASHADHA, 1940** **WP(C).No. 20078 of 2018** ## **PETITIONER** **LAKSHMI RAJENDRAN 27YEARS, D/O.N.RAJENDRAN, 747 B, 'RAMLAKSHMI', KANNANTHODATHU ROAD, EDAPPALLY P.O., COCHIN-682 024.** **BY ADVS.SRI.REJI GEORGE SMT.ANUPAMA JOHNY SRI.BINOY DAVIS SRI.R.P.SREENIVASAN** ## **RESPONDENTS** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 101.** **2. THE FREE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA (CONSTITUTED UNDER SECTION 6 OF ACT 19 OF 2006), T.C.15/1553-4, PRASANTHI BUILDINGS, M.P APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014, REPRESENTED BY ITS CHAIRMAN.** **3. THE ADMISSION AND FEE REGULATORY COMMITTEE FOR MEDICAL EDUCATION IN KERALA (CONSTITUTED UNDER SECTION 3 OF ACT 15 OF 2017), T.C.15/1553-4, PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUDHACAUD, THIRUVANANTHAPURAM-695 014, REPRESENTED BY ITS CHAIRMAN. WP(C).No. 20078 of 2018 2** ## **4. COMMISSIONER FOR ENTRANCE EXAMINATIONS (CEE)** **OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, 6TH FLOOR, KSHB BUILDINGS, SHANTI NAGAR, THIRUVANANTHAPURAM-695 001.** ## **5. MEDICAL COUNCIL OF INDIA** **POCKET 14, SECTOR 8, DWARAKA PHASE I,** **NEW DELHI, PIN - 110 077,** **REPRESENTED BY ITS SECRETARY.** ## **6. ACADEMY OF MEDICAL SCIENCES (ACME)** **MEDICAL COLLEGE, PARIYARAM MC CAMPUS ROAD, PARIYARAM, KANNUR-670 503.** **R5 BY ADV. SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA** **R BY SMT.BINDUMOL JOSEPH** - **R BY SPL. GOVERNMENT PLEADER SRI.M.A. ASIF** **R BY SRI.B.S.SYAMANTHAK** - **R BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE FOR PROF. COLLEGES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 20078 of 2018 (H)** ## **APPENDIX** **PETITIONER(S)' EXHIBITS EXHIBIT-P1: TRUE COPY OF THE PETITIONER'S SCORE CARD OF THE NEET-PG 2017. EXHIBIT-P2: TRUE COPY OF THE ADMISSION SLIP DATED 25.05.2017 SHOWING THE RANK OF THE PETITIONER. EXHIBIT-P3: TRUE COPY OF FEE RECEIPT NO.2017-18/MC/102 DATED 25.05.2017 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER. EXHIBIT-P4: TRUE COPY OF THE PAYMENT SLIP DATED 24.05.2017 ISSUED BY THE STATE BANK OF INDIA. EXHIBIT-P5: TRUE COPY OF THE FEE RECEIPT NO.2016-17/MC/933 DATED 21.06.2016 ISSUED BY THE 6TH RESPONDENT TO DR.JESSIN KUMAR C. EXHIBIT-P6: TRUE COPY OF THE FEE RECEIPT NO.2016-17/MC/207 DATED 20.05.2016 ISSUED BY THE 6TH RESPONDENT TO DR.RASEENA M.K. EXHIBIT-P7: TRUE COPY OF THE FEE FIXATION ORDER NO.FRC50/17/MD/MS/DIRECTIVES DATED 11.05.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P8: TRUE COPY OF GAZETTE NOTIFICATION G.O.(RT) NO.1366/2017/H&FWD DATED 15.05.2017. EXHIBIT-P9: TRUE COPY OF THE FEE FIXATION ORDER NO.AFRC50/18/MD/MS/SFMCK DATED 12.04.2018 ISSUED BY THE 3RD RESPONDENT. EXHIBIT-P10: TRUE COPY OF GAZETTE NOTIFICATION G.O.(P) NO.42/2018/H&FWD DATED 12.04.2018. EXHIBIT-P11: TRUE COPY OF THE NOTIFICATION G.O.(P) NO.43/2018/H&FWD DATED 13.04.2018 ISSUED BY THE GOVERNMENT OF KERALA. EXHIBIT-P12: TRUE COPY OF NOTICE NO.B2/GEN./2014/ACME DATED 15.05.2018, ISSUED BY THE 6TH RESPONDENT.** **WP(C).No. 20078 of 2018 (H)** ## **RESPONDENTS EXHIBITS** ## **NIL** **TRUE COPY** **P.A TO JUDGE** **SMM** ## **K.SURENDRA MOHAN & SHIRCY V.,JJ. ------------------------------------------------------** ## **W.P(C)No.20078 of 2018** **------------------------------------------------------** ## **Dated this the 26[th] day of June, 2018** ## **JUDGMENT** ## **Surendra Mohan,J.** The petitioner who is a student of MD (Dermatology Venereal Diseases and Leprosy) at the 6[th] respondent Medical College. 2. This writ petition is filed challenging Exts.P9,P10 and P11 orders fixing the fees for NRI students for the years 2017-18 and 2018-19. Ext.P9 is an order passed by the third respondent while Exts.P10 and P11 are passed by the first respondent. As per Exts.P10 and P11, the fee fixed by the third respondent has been approved by the Government. The fee so fixed is Rs.35 lakhs annually. 3. The petitioner had joined her MD course on 25.5.2017 pursuant to an allotment dated 21.5.2017 made by the Commissioner for Entrance Examinations, Kerala W.P(C)No.20078 of 2018 2 under the NRI quota. Accordingly by Ext.P3 dated 25.5.2017, she paid the total amount of Rs.35 lakhs fixed as annual fees. 4. The contention of the petitioner is that, as evident from Exts.P5 and P6 receipts issued to two students who had taken admission during the year 2016-17, the tuition fee charged was only Rs.18,50,000/-. It is contended that, the revision and enhancement of the fee so steepy to Rs.35 lakhs is absolutely without justification. Therefore, the petitioner seeks quashing of the impugned orders. 5. According to Adv.Reji George, who appears for the petitioner, when the petitioner was granted admission, the proceedings were being regulated by the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitation Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 (Act 19 of 2006). Section 3 W.P(C)No.20078 of 2018 6(5) of the said enactment stipulates that the fee determined by the Committee shall be binding on the unaided professional college or institution for a period of three years. In view of the above provision, it is contended that the fee of Rs.18,50,000/- that was applicable for the year 2016-17 ought to have continued unaltered for the subsequent year also. Since the fee has been revised before the expiry of three years, the said action is without authority and is liable to be set aside, it is contended. It is further contended that, the hike of the tuition fee from Rs.18,50,000/- to Rs.35 lakhs is arbitrary and not based on any acceptable principle or data. For the said reason, it is contended that, the enhancement in fee has to be set aside. The third contention put forward is that, going by the dictum laid down by the Apex Court, permission to charge higher fees from NRI students was granted only for the purpose of providing fee concession to financially weak students. W.P(C)No.20078 of 2018 4 Inasmuch as the sixth respondent College is not granting fee concession to any category of students, there is no justification for charging higher fees from NRI students. 6. According to the learned Government Pleader who opposes the contentions of the learned counsel for the petitioner, there is nothing on record to show when the tuition fee paid by the students as per Exts.P5 and P6 was fixed. In the absence of any data regarding the said aspect, the contention of the counsel for the petitioner cannot succeed. The third respondent has fixed the fees in the present case, after calling for suggestions from the colleges, scrutinizing their records and considering all the relevant aspects. Therefore, it is contended there are absolutely no grounds for interference with the impugned orders. 7. Advocate Mrs.Mary Benjamin who appears for respondents 2 and 3 defends the impugned orders pointing out that though the Act 19 of 2006 was in force upto the 5 W.P(C)No.20078 of 2018 year 2017, with effect from 1.6.2017, the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions)Ordinance, 2017 (Act 15 of 2017) was brought into force. Consequently, admissions to all under graduate as well as post graduate Medical Colleges, are regulated by the provisions of the said Act thereafter. The Committee has also been reconstituted as the Admission and Fee Regulatory Committee (third respondent) in accordance with the provisions of Act 15 of 2017. It is in accordance with the provisions of the said Act that the impugned order, Ext.P9 has been passed. The same has been accepted by the State also. According to the learned Counsel, the tuition fee has been fixed after considering all the inputs provided by different colleges and taking into account a number of variable factors on the basis of the cost incurred for the conduct of the course during the previous year. It is contended that there are absolutely no W.P(C)No.20078 of 2018 6 grounds to interfere with the said orders. 8. We have also heard Adv.Syamantak.B.S. who appears for the sixth respondent. We have heard the respective Counsel at length. We have been taken through the records in detail. We have considered the contentions advanced before us anxiously. We shall address the legal question raised, first. 9. According to the learned counsel for the petitioner, the import of Section 6(5) of Act 19 of 2006 is to prohibit a revision of the fee fixed for a period of three years. In order to consider the above aspect, it is necessary to examine the provisions of the Act 19 of 2006. The relevant provisions are sub sections 4 and 5 of Section 6. The said provisions are extracted below for convenience of reference. “(4) The Fee Regulatory Committee shall have power to:- (a) require each unaided professional college or institution to place before the Committee the proposed fee structure of such college or institution with all W.P(C)No.20078 of 2018 7 relevant documents and books of accounts for scrutiny well in advance of the commencement of the academic year i.e., not later than 31[st] December of the previous academic year; (b) verify whether the fee proposed by each college or institution is justified and it does not amount to profiteering or charging of capitation fee; (c) approve the fee structure or determine some other fee which can be charged by the college or institution. (5) The fee determined by the Committee shall be binding on the unaided professional college or institution for a period of three years. The fee so determined shall be applicable to a candidate who is admitted to a college or institution in that academic year and shall not be revised till the completion of his course in the said college or institution. No unaided professional college or institution shall collect a fee amounting to more than one year's fee from a candidate in an academic year. Collection of more than one year's fee in an academic year shall be construed as collecting of capitation fee and shall be liable to be proceeded against.” 10. Section 6(4) confers power on the Fee Regulatory Committee to require each unaided professional colleges/institutions to place before the Committee the W.P(C)No.20078 of 2018 8 proposed fee structure with all relevant documents before the date specified therein. The said permission further confers power on the Committee to verify whether the fee proposed by each college is institutionally justified and to examine whether the fee suggested would amount to profiteering or charging of capitation fee. Thirdly, the provision confers power on the Committee to either approve the fee structure or to determine some other fee that can be charged by the college or institution. Therefore, Section 6(4) clothes the Fee Regulatory Committee with sufficient powers to undertake the exercise, examine the relevant documents of the college, its accounts and other materials, to decide whether the proposed fee was justified or not and if not, to determine the proper fee. Section 6(5) provides that the fee so determined by the Committee shall be binding on the unaided professional college or institution for a period of three years. It is further provided that the fee so 9 W.P(C)No.20078 of 2018 determined shall be applicable to a candidate who is admitted to a college or institution in that academic year and that, the said fee shall not be revised until he completes his course in the said college or institution. 11. It is clear from the above scheme that, the prohibition that is enacted by the opening sentence under Section 6(5) is against any action on the part of the unaided professional college or institution to revise the fee for a period of three years. In other words, the provision only prohibits the college from seeking a revision or enhancement of the fee, within the stipulated period of three years. It is not a limitation on the power of the Fee Regulatory Committee. The second sentence in Section 6(5) makes it further clear that the fee so determined shall be applicable to the candidate who is admitted to a college or institution and shall not be revised until he completes the course. It is not in dispute that, Act 19 of 2006 applies not W.P(C)No.20078 of 2018 10 merely to Medical Courses but also to Engineering as well as other courses. The duration of each of the courses vary from three years to five years and in some cases, it is only two years. Therefore, the contention that in view of the opening sentence in Section 6(5), the third respondent does not have power to revise the fee for a period of three years, after determination is rejected. 12. The second contention is that, the fee of Rs.35 lakhs fixed by the third respondent for NRI students is without any justification. A perusal of Ext.P9 shows that the third respondent had called for the records of various colleges, scrutinized the accounts and heard their representatives before fixing the fee. Therefore, we are not satisfied that the fee that has been fixed is arbitrary. ( **See P.A.Inamdar v. State of Maharashtra [(2005) 6 SCC 537** ]). Para 131 of the said decision that deals with NRI seats reads as under: W.P(C)No.20078 of 2018 11 “131. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians (“NRI” for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to a certain number of students under such quota by charging a higher amount of fee. In fact, the term “NRI” in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats W.P(C)No.20078 of 2018 12 should be utilised bona fide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy to regulate.” 13. As evident from the above passage, the Apex Court has permitted 15% of the seats to be set apart for NRIs only with three riders: - 1) that such seats should be utilised bona fide by NRIs - only and for their children or their wards; - 2) Secondly, within the said quota, merit should not be - given a complete go-by. - 3) The amount of money in whatever form collected - from such NRIs, should be utilised for benefiting students W.P(C)No.20078 of 2018 13 such as from economically weaker sections of the society. In other words, no other criteria for fixing the fee of NRI students has been stipulated by the Apex Court. Therefore, we do not find any infirmity in the adoption of Rs.35 lakhs as the fee for NRI students by Ext.P9. 14. Another contention put forward by the learned counsel for the petitioner is that, as on the date on which the petitioner who was granted admission, it was Act 19 of 2006 that was applicable, and therefore, in view of Section 15 of Act 15 of 2017, further proceedings ought to have been continued under the provisions of the said Act. However, we notice that Act 15 of 2017 was brought into force with effect from 1.6.2017. The petitioner was granted admission on 25.5.2017. She had remitted her fees as per Ext.P3 on 25.5.2017. At that time, the fee was remitted in accordance with a provisional order passed by the second respondent on 11.5.2017. Though the said order was the 14 W.P(C)No.20078 of 2018 subject matter of challenge before this Court in _**Kerala Self-Financing Dental College v. State of Kerala and another [2017 (4) KLT 809]**_ , the same was not set aside. Though it was found that the Committee had no power to pass such a provisional order, the same was not interfered with holding that it had become a _fait accompli_ . This Court therefore directed the Committee to pass final orders in the matter of the fee payable by the students. It was accordingly that Ext.P9 order was passed. We notice that, the fee that was stipulated by Ext.P7 provisional order has been maintained in Ext.P9 also. Therefore, the fee that was paid by the petitioner initially at the time of admission, continues unchanged. The petitioner has accepted the admission and had paid the fee stipulated by the provisional order without any demur. Therefore, it cannot be said that the action of the Committee in fixing the fee as per Ext.P9 has taken her by surprise. She has accepted the admission 15 W.P(C)No.20078 of 2018 knowing fully well what fee she would have to pay. As rightly pointed out by the learned Government Pleader she is a person who has not got admission in the merit quota. She has got admission only because she was considered in the NRI quota. Therefore her contention that the fee fixed is inordinate cannot be accepted. 15. For the foregoing reasons, the writ petition fails and is dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **SHIRCY.V JUDGE** smm