W.P.(C) No. 19144 of 2018 (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **WP(C).No.19144 OF 2018(P)** ## **PETITIONER/S:** - **1 ASHWATHI PRASHANTH AGED 19 YEARS, PERALAM, PAYYANNUR,KANNUR -670 307.** - **2 ROVAN ANJAL T. SIDDEEK SO.D.R.K.P.A.SIDDEEK AGED 18 YEARS, CAMEO, M.M.ROAD,THALASSERY, KANNUR -6701 101.** - **3 ASEEM MOHAMMED ASHRAF SO.MOHAMMED ASHRAF AGED 18 YEARS, NAVIYANTE PARAMBATH,KUTTIADI P.O, KOZHIKODE-674 508.** - **4 MEGHANA H. DO.HEMACHANDRAN K. AGED 18 YEARS, CHAITHANYA, NARAYANA NAGAR,VADAKARA, KOZHIKODE -673 001.** - **5 FIDVI FAZAL SO.FAZALUDHEEN OLIYATH AGED 18 YEARS, PALLIVEED, EAST NADA,KODUNGALLUR, THRISSUR.** - **6 SHREYA PAVANGAT DO.DR.BEHIRSHAN P. AGED 18 YEARS, PAVANGAT HOUSE, P.O.PUTHIYANGAL,KOZHIKODE - 673 021.** - **7 KADEEJA ZEBA A. DO.SIRAJ ALI A.K. AGED 18 YEARS, AVULAN HOUSE, PONMALA,TIRUR TALUK, MALAPPURAM.** - **8 ASWATHI PRADEEPKUMAR DO.K.PRADEEPKUMAR AGED 19 YEARS, 10/417, ASWATHY, VELLAROAD,MANKARA, PALAKKAD -678 613.** W.P.(C) No. 19144 of 2018 -2- - **9 HASNA M.C. DO.BEERAVUNNI AGED 18 YEARS, MACHINCHERI HOUSE, PUTHUR,KUTTIPALA, MALAPPUAM - 676 501.** - **10 GAYATHRI M. DO.MANIKANTAN M.K. AGED 18 YEARS, MANNADIYATHIL HOUSE,ELAVUMTHITTA, MUTTATHUKONAM,PATHANAMTHITTA - 689 625.** - **11 AMAL A.J. SO.AJIKUMAR M. AGED 18 YEARS, PUTHENVILA VEEDU, THOTTAVARAM,KODUVAZHANOOR P.O, THIRUVANANTHAPURAM -695 612.** - **12 KAVYA S. SADEESHAN PILLAI, AGED 18 YEARS, V.C.BHAVAN,PARIPPALLY, KOLLAM - 691 574.** - **13 SREELEKSHMI P. DO.PRABHAKARAN NAIR C.M. AGED 18 YEARS, CHEMBU PARAMBIL,BALAGRAM P.O, IDUKKI -685 552.** - **14 ASWATHI SIVADAS DO.SIVADASAN T.P. AGED 18 YEARS, KRISHNAPRIYA, P.O.CHELERI,KANNUR - 670 604.** - **15 ASWATHY KRISHNA V. DO.KRISHNAKUMAR G.S. AGED 18 YEARS, SYAMASADANAM, NR. G.H.S. SCHOOL,MARAYAMUTTOM P.O., NEYYATTINKARA,THIRUVANANTHAPURAM -695 124.** - **16 SOURAV C. SO.SUNIL KUMAR C. AGED 18 YEARS, SARAYU, POST THIRUVANGAD,KUTTIMAKKOOL, THALASSERY, KANNUR670103.** - **17 ANJALI M.K. DO.T.SAJEEV KUMAR AGED 18 YEARS, SOPANAM, RAINBOW GRADENS,THIRUVAMBADY POST, PATTURAIKKAL,THRISSUR-680 022.** - **18 AISWARYA S. DO.VIJAYAKUMARAN NAIR G.** W.P.(C) No. 19144 of 2018 -3- **LOVE SHORE, SNRA 4K, SWATHI NAGAR LANE 4A,SAP CAMP, PEROORKKADA P.O., THIRUVANANTHAPURAM-695 005.** - **19 ABHIRAMI S.H. DO.HARISHBABU N.R. AGED 19 YEARS, TC-65/2220(1), THIRUVALLAM P.O,THIRUVANANTHAPURAM -695 027.** - **20 MUFEEDA V.K. DO.C.H.MOHAMMED RAFI AGED 18 YEARS, FOUSIYA MANZIL, ILLIPURAM,PAPPINISSERY WEST P.O, KANNUR - 670 561.** - **21 VAISHNAV SO.GOPAKUMAR MEDAYIL AGED 18 YEARS, MADAYIL HOUSE, OPP.LEAD COLLEGE OF MANAGEMENT,DHONI P.O., PALAKKAD - 678 009.** - **22 SUFAID MAMMO SO.MAMMOO MUFEEDA MANZIL, ENTHODE,PAPPINISSERI, KANNUR.** - **23 LAKSHMI R. DO.ROY PONNAKUDOM, KANGARAPADY, VADACODE,ERNAKULAM -682 021.** - **24 SAJITH P. SO.DR.SASIKUMAR AGED 19 YEARS, SHREYAS, MANGALAM P.O.,LAKKIDI, OTTAPALAM, PALAKKAD -679 301.** - **25 BHAGATH UDAYAN SO.UDAYAKUMAR AGED 19 YEARS, S.T.HOUSE, AVANAVANCHERI,P.O.ATTINGAL, THIRUVANANTHAPURAM -695 033.** - **26 SOWRAV SASIKUMAR SO.DR.K.M.SASIKUMAR AGED 19 YEARS, ACHUTHAM, SRINGAPURAM,P.O.KODUNGALLUR, THRISSUR-680 664.** - **27 AMINA N.S. DO.M.NISTHAR AGED 19 YEARS, E.V.HOUSE, M.C.ROAD,BALARAMAPURAM P.O, THIRUVANANTHAPURAM-695 501.** W.P.(C) No. 19144 of 2018 -4- - **28 GOPIKA KRISHNAN K.V. DO.KRISHNAN K.V. AGED 19 YEARS, KIZHAKKU VEETTIL HOUSE,MUTHEDATH PARAMBU, CHELEMBRA P.O.,PADINJATTINPADI, MALAPPURAM -673 634.** - **29 SREELAKSHMI DILEEP DO.M.S.DILEEP AGED 19 YEARS, MAROLA HOUE, VATTAPARAMBU P.O.,KURUMASSERY, ERNAKULAM - 683 579.** - **30 SHANA SHERIN C.P. DO.ABDULLA K.P. AGED 19 YEARS, SHANA SHABNAM, NR. MADRASSA,TALIPARAMBA P.O, KANNUR - 670 011.** - **31 HRISHIKESH K.S. SO.DR.K.B.SANAL KUMAR AGED 19 YEARS, LOTUS, THEKKEMODOM ROAD,THRISSUR - 680 003.** - **32 MUFEEDHA SHEREEN MUTHAFA DO.T.M.MUTHAFA AGED 19 YEARS, BAITHEEL SHERINS, NR.MAIDANI MASJID,ELAMBACHI, P.O. TRIKARPUR, KASARAGOD.** - **33 KAVYA T.S. DO.JAYASANKARAN KOCHATH AGED 19 YEARS, KAVYAM, KOCHATH HOUSE, KOTTATHARA,P.O.EASWARAMANGALAM, PONNANI, MALAPPURAM-679 873.** - **34 K.P. THEERTHA DO.K.PRADEEPAN AGED 19 YEARS, METTACK HOUSE, NALAMPEEDIKA,P.O.MAMBA, KANNUR -670 611.** - **35 MEENAKSHI M. PRADEEP DO.PRADEEP PJRRA-E-15, KUMARAPURAM, MEDICAL COLLEGE P.O,THIRUVANANTHAPURAM -695 011.** **BY ADVS.** **SRI.MAHESH V RAMAKRISHNAN SRI.K.PRAMOD** ## **RESPONDENT/S:** - **1 STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT,HEALTH &** W.P.(C) No. 19144 of 2018 -5- # **FAMILY WELFARE (S) DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM -695 001.** - **2 ADMISSION AND FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, TC 15/15334,PRASANTHI BUILDINGS, M.P.APPAN ROAD,VAZHUTHAKKAD, THIRUVANANTHAPURAM -695014.** - **3 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS HOUSING BOARD BUILDINGS, SANTHI NAGAR,THIRUVANANTHAPUAM -695 001.** - **4 ACADEMY OF MEDICAL SCIENCES PARIYARAM, KANNUR -670 503,REPRESENTED BY ITS DIRECTOR.** ## **OTHER PRESENT:** **SR.GP SRI.M.A.ASIF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 08.08.2019, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** W.P.(C) No. 19144 of 2018 -6- ## **JUDGMENT** ## V.G.ARUN, J. Petitioners are students pursuing their second year MBBS course at the fourth respondent Medical College, which is a Government controlled Self-financing Institution in the Co-operative Sector. Petitioners were admitted to the management quota during the academic year 2017-18, through the Centralised Allotment Process conducted by the Commissioner for Entrance Examinations (CEE). 2. The fee applicable for various categories of MBBS students admitted to the fourth respondent College in the academic year 2017-18 was prescribed by the Government as per Ext.P3 Government order dated 20.7.2017. Under Ext.P3, the fees prescribed for management quota students was Rs.10,00,000/- for the academic year 2017-18. The W.P.(C) No. 19144 of 2018 -7- prescription of fees was on the basis of an agreement executed between the management of the fourth respondent College and the Government, in terms of Section 17 of the Kerala Medical Education (Regulation and Control of Admission to Private Medical Institutions) Ordinance, 2017, later replaced by Act 15 of 2017. Some of the petitioners had challenged Section 17 of the Ordinance of 2017 and the prescription of fee of Rs.10,00,000/-, by filing W.P.(C) No.33336 of 2017. There were other writ petitions also challenging various provisions in the Ordinance of 2017, including Section 17. Those cases were decided by a Division Bench in **Kerala Self-Financing Dental College Managements Consortium v. State of Kerala [2017 (4) KLT 809** ]. By the said judgment, along with certain other provisions of the 2017 Act, Section 17 also was declared as _ultra vires_ . Thereafter, W.P.(C) No.33336 of 2017 was W.P.(C) No. 19144 of 2018 -8- disposed of by Ext.P1 judgment finding that no further adjudication is necessary insofar as the field is covered by the decision in Kerala _Self-Financing Dental College_ . _Managements' (supra)_ 4. Under Ext.P1, the Admission and Fee Regulatory Committee for Medical Education was directed to consider the proposal for fixing the fee payable in respect of the courses offered by the fourth respondent. Accordingly, the Admission and Fee Regulatory Committee considered the issue and passed Ext.P2 order, fixing the tuition fee at Rs.4,85,000/- per student per annum for the academic year 2017-18, with provision for increase in the subsequent years. 5. The writ petition is filed contending that the petitioners were admitted to the management quota based on the agreement entered between the fourth respondent W.P.(C) No. 19144 of 2018 -9- College and the Government and Ext.P3, the consequent Government order, based on Section 17 of the 2017 Act. That, Section 17 having been declared _ultra vires_ by the High Court, followed by reduction of fees at the instance of the Committee, the petitioners' allotment and admission are to be declared as merit based allotment, as in the case of similarly situated students in other Colleges. It is contended that the petitioners had secured admission through the allotment process conducted by the CEE, based on their State merit and that they were admitted to the fourth respondent College on the basis of the option exercised by them. That, the only reason categorising the petitioners as management quota students was the agreement entered into between the fourth respondent College and the Government. It is contended that after Ext.P3 order of the Committee, uniform fees is being paid by all except NRI students and hence, there W.P.(C) No. 19144 of 2018 -10- is no basis for continuing the classification among those students and categorising the petitioners as management quota students. 6. In order to decide as to whether the petitioners are entitled for the reliefs, it would be apposite to understand the reasons for striking of Section 17 of Act 15 of 2017 Act enumerated at Paragraphs 74 to 81 of _Kerala Self-_ _Financing Dental College Managements'_ case, which reads thus: “74. Now, we may come to the challenge with regard to S.17 of the 2017 Act in relation to agreement. S.17 reads thus: “17. **Agreement between Government and medical educational institutions** .-- Notwithstanding anything contained in the foregoing provisions or in any other law, the Government may enter into any agreement with one or more private medical educational institutions regarding fee or any such other matter.” 75. Section 17 has been attacked by the institutions and students alike. It is submitted that it authorises the Government to come to an unholy alliance with the institutions. There are absolutely no guidelines, no restrictions, no limitations and no policy discernible. On behalf of the institutions, it is submitted that it is only a provision made to ensure that to avoid the lengthy process of scrutiny of accounts by the Fee Regulatory Committee and to deal with the members of the Committee W.P.(C) No. 19144 of 2018 -11- and their views, an escape is provided to come to the Government directly and offer a golden handshake whereby, giving a complete go by to the considerations for fee fixation and the judgments in relation thereto, agreements can be entered. The use of the non obstante clause “notwithstanding....” is significant. 76. Sri.Santhosh Mathew, learned counsel who appeared for the students, brought to the notice of the Court how, even for the present academic session, some of the institutions, instead of facing the Committee, entered into a negotiated settlement and agreement with the Government. The agreements clearly show the varying fee structure for the same batch in the same institution and that was agreed to, whereby about 35% of the students, even though admitted on merit basis under the socalled management quota, were to pay a fee of about `11,00,000/- annually. The management quota was fixed at 50% of the available admissions. The balance 15% was allocated to NRIs., who were to pay about `14,00,000/-. These high fees were then used to subsidise the 50% Government quota whereby, about 10% seats were reserved for BPL candidates, who were to pay only `25,000/- annually. Then there were Scheduled Castes/Scheduled Tribes and OBC, who were required to pay only about `1,50,000/- annually and the balance of about 30% remaining from the 50% Government quota, who were also to be selected on merit, were to pay about `2,50,000/-. This was clearly an agreement, in conflict with the decision of T.M.A. Pai Foundation's case (supra) where such cross subsidies, as was earlier provided in Unni Krishnan's case (supra) was clearly held to be unconstitutional and the said decision was overruled. 77. We may notice an arbitrary result of this agreement to the prejudice of the students, in as much as, a meritorious unreserved category student may end up getting a seat in the Government quota and pay `2,50,000/- as fee. But, a less meritorious unreserved category student may fall within the 35% management quota and would have to pay `11,00,000/-. If such a provision for agreement is allowed to exist, then, in absence of any guidelines, the power being totally unguided and W.P.(C) No. 19144 of 2018 -12- uncertain, abuse is inherent therein. It may be noted that on seeing the challenge which was made to this provision, two institutions, who had entered into an agreement with the Government, then backed out. 78. In fairness to the learned Advocate General, we must note his submission in this regard. He submits, with reference to paragraph 68 of the decision in T.M.A. Pai Foundation's case (supra) and paragraph 110 of the decision in P.A. Inamdar's case (supra) as well as paragraph 128 thereof, that consensual agreements are allowed. We may usefully refer to what is stated in paragraph 128 of the decision in P.A. Inamdar's case (supra), which reads as under: _“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.”_ 79. A reference to the above would show that all that their Lordships are referring to, in relation to a consensual agreement, is with regard to fixation of percentage of quota between different types of students depending upon their background. It deals with seat matrix only and not fee. It does not anywhere refer to an consensual agreement with regard to fee, for, the judgments are consistent that there has to be a uniform fee structure. We will come and notice the exception thereto. The concept of cross subsidy, as was enunciated in the decision in Unni Krishnan's case (supra) was expressly noticed and overruled in T.M.A.Pai Foundation's case (supra). That can't by reintroduced through back door by S.17 of Act 2017. This unbridled power is dangerous for its implication, even otherwise. It opens a way to unholy alliance and a golden handshake with the Government as there are no limitations, no conditions, no control and no judicial review. We, therefore, cannot accept the contention of the learned Advocate General, for, such agreements are not sanctified by the judgments in any way, especially in relation to fee structure. S.17 as a whole of the 2017 Act is clearly ultra vires, being arbitrary and in conflict with W.P.(C) No. 19144 of 2018 -13- binding precedents and thus, in conflict with Articles 14 and 19(1)(g) of the Constitution. 80. While on this, we may note a limited aspect of cross subsidy, as has been permitted by the Apex Court. First, the Courts have held that admissions have to be purely on merit basis with fixed admission fee. “Fixed” means fixed for all students of the same batch of the same institution uniformly. But, the exception thereto is to be found in paragraph 131 in the case of P.A. Inamdar (supra) and followed thereafter wherein, it clearly said that there can be a 15% reservation for NRIs. where, higher amounts can be charged towards fees. The higher figure or the enhancement made for such NRI students, who are also selected on merit, would be then used to subsidise the economically weaker section of the society. Thus, what was allowed as cross subsidy, was only to the extent of taxing the NRIs. for the benefit of the poorer section of the society and not a general subsidy in the manner in which, it is being done purporting to be under S.17 of the 2017 State Act. 81. While on this, we would again note another aspect. It is open to the Government to fix quotas reserving seats for deserving categories of students, especially in view of Article 15A as now introduced in the Constitution. But while doing so, one thing has to be kept in mind, that any seat that is not filled up from the available category, cannot be left vacant or carried over to the next academic session. If a particular category is not available, then it may be rotated to another reserved category and if they are also not available, then it has to be opened for the general category. But, in no case, any seat can be permitted to be left unfulfilled. Even while fixing these quotas, the admissions have to be strictly according to merits from amongst the quota. The consensual agreement, as allowed by the Apex Court, is only to this extent of seat matrix and not beyond that.” 7. The Division Bench having found that fees for the 85% of seats, other than the 15% NRI seats, has to be W.P.(C) No. 19144 of 2018 **==> picture [23 x 8] intentionally omitted <==** uniform, the Committee had as per Ext.P2 fixed the tuition fee for the academic year 2017-18 at Rs.4,85,000/- per student. Therefore, from the date of Ext.P2, there is no categorisation on the basis of fees. In this context, it may be relevant to note that in all other Self-Financing Medical Institutions, there are only two categories of allotment, _viz_ ; state merit and NRI. 6. The learned Counsel for the petitioners submits that the classification of petitioners as merit quota students would not prejudice the Government or the College and on the other hand would enable the petitioners to apply for and obtain education loans. The learned Special Government Pleader would submit that the petitioners are bound to continue as management quota students, since it was only due to the intervention of the Division Bench in _Kerala SelfFinancing Dental College Managements'_ case and Ext. P2, the W.P.(C) No. 19144 of 2018 -15- consequential order of the Committee, that the petitioners, who had agreed to pay fees at the rate of Rs.10,00,000/- per annum, could pay the reduced fees of Rs.4,50,000/-. It is submitted that the reduction of fees at the intervention of the Court would not change the status of the petitioners as management quota students. If the lower fees was published earlier, then others, who had better merit may have opted, is the contention. 7. According to us, the fact that the petitioners benefited out of the judgment of this Court and a consequential order of the Committee, are not reasons for categorising the petitioners differently from similarly situated students in other Self-Financing Institutions. Such categorisation would amount to discrimination and unreasonable classification, since, as in the case of the management quota students in other Self Financing W.P.(C) No. 19144 of 2018 -16- Institutions, the petitioners were allotted to the fourth respondent College through the Centralised Allotment Process conducted by the CEE. Hence, we allow the writ petition and direct the 4[th] not to the as respondent tag petitioners “Management/Management Merit Quota Students” in any of their official communications/ circulars/notifications/ certificates. No order as to costs. sd/- **K. VINOD CHANDRAN** **JUDGE** sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No. 19144 of 2018 -17- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMMON JUDGMENT DATED 04.01.2018 IN WPC NO.33336 OF 2017** **EXHIBIT P2 TRUE COPY OF THE ORDER IN AFRC 50/17/MBBS/ACME DATED 13.04.2018 ISSUED BY THE 2ND RESPONDENT COMMITTEE.** **EXHIBIT P3 TRUE COPY OF THE GO(RT)NO.2040/2017/H&FWD DATED 20.07.2017** **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 23.01.2018 SUBMITTED BY THE 8TH PETITIONER HEREIN BEFORE THE 3RD RESPONDENT.** **EXHIBIT P5 TRUE COPY OF LIST OF ALLOTMENT OF SEATS TO THE 4TH RESPONDENT COLLEGE DATED 27.08.2017, PUBLISHED BY THE 3RD RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE ADMISSION LIST OF THE 4TH RESPONDENT COLLEGE PUBLISHED BY THE 3RD RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE ALLOTMENT OF SEATS TO P.K.DAS INSTITUTE OF MEDICAL SCIENCES, VANIYAMKULAM, OTTAPALAM, PALAKKAD DATED 27.08.2017 PUBLISHED BY THE 3RD RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE LIST OF ALLOTMENT OF SEATS TO SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION, VENJARAMOODU P.O., THIRUVANANTHAPURAM, DATED 27.08.2017, PUBLISHED BY THE 3RD RESPONDENT.** -18- ## W.P.(C) No. 19144 of 2018 **EXHIBIT P9** **TRUE COPY OF THE GO(P)NO.65/2017/FIN DATED 16.04.2017** - **EXHIBIT P10 TRUE COPY OF THE INSTRUCTIONS DATED NIL PUBLISHED BY UNION BANK OF INDIA.** - **EXHIBIT P11 TRUE COPY OF THE CERTIFICATE DATED 23.05.2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER NO.8** - **EXHIBIT P12 TRUE COPY OF THE CERTIFICATE DATED 23.05.2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER NO.11** - **EXHIBIT P13 TRUE COPY OF THE PROSPECTUS FOR ADMISSION TO THE MBBS COURSE OF THE YEAR 2017-18** - **EXHIBIT P14 TRUE COPY OF THE PAYMENT SLIP DATED 29/8/2017 ISSUED BY THE 1ST RESPONDENT TO THE 14TH PETITIONER** - **EXHIBIT P15 TRUE COPY OF THE ALLOTMENT MEMO DATED 27/8/2017 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER NO.19.** - **EXHIBIT P16 TRUE COPY OF THE ADMISSION LIST OF THE MBBS COURSE OF MALABAR MEDICAL COLLEGE,KOZHIKODE** - **EXHIBIT P17 TRUE COPY OF THE ADMISSION LIST OF THE MBBS COURSE OF SREE NARAYANA MEDICAL COLLEGE ERNAKULAM** - **EXHIBIT P18 TRUE COPY OF THE ADMISSION LIST OF THE MBBS COURSE OF PK DAS MEDICAL COLLEGE, OTTAPALAM** - **EXHIBIT P19 THE RANK LIST OF THE PETITIONERS HEREIN**