T.M.A. PAI FOUNDATION AND ORS. ETC.versusSTATE OF KARNATAKA AND ORS. ETC

A                T.M.A. PAI FOUNDATION AND ORS. ETC.
                                         v.
                  STATE OF KARNATAKA AND CRS. ETC.

                                 AUGUST 9, 1996

B   [KULDIP SINGH, S.C. AGRAWAL AND B.P. JEEVAN REDDY, JJ.]

          Education :

          P1ivate professional colleges imparting education in Medical, Engi11eer-
C ing and ot/zer professio11al course;~Admissio11 to and fixation of fee-Direc-
    tions gi.ven in addition to, in .continuation and in clarification of earlier
    ordm·• including tlze order dated Jl.8.1985 as ct1ended by order dated
    10.5.1996.

          Unnikrishna11, J.P. & Ors. v. State of A11dl!ra Pradesh & Ors., (1993] 1
D   sec 645, followed.
           *T.MA. Pai Foundation & Ors. Etc. v. State of Kamataka & Ols. Etc,
     [1993] 4 sec 276; (1994] 4 sec 728; [1995] 5 sec 220, referred to.

          ('VIL APPELLATE JURISDICTION : Interlocutory Applicalion
E   Nos. 24, 41A 43-49 and 51-65.

                               In

          Writ Petition (C) No. 317 of 1993 Etc. Etc.

F          (Under Article 32 of the Constitution of India.)

           V:R. Reddy, Additional Solicitor General, N.N. Goswami, F.S.
     Nariman, R.F. Nariman, Ms. Indira J aisingh, S.K. Dholakia, Rajeev
     Dhawan, V.A. Bobde, H.N. Salve, P.P. Rao, Sr. Advs., L.R. Singh, M.
     Veerappa, Arun K. Sharma, D.M. Popat, Dhavesh V. Panjwani, P.H.
G    Parekh, Sameer Parekh, Ms. Indu Malhotra, Ms. Shruti Pandey, Ms. Anita,
     D.M. Nargolkar, S.M. Jadhav, Makarand D. Adkar, S.D. Singh, Ejaz
     Maqbool, S.K. Mehta, Dhruv Mehta, Fazlin Anam, Alok Singh, V.B. Joshi,
     Umesh Bhagwat, Syed Ali Ahmed, Syed Tanweer Ahmed, Mohan Pandey,
     Brijender Singh Chahar, Ashok Mathur, Ms. Lalita Kam.hik, Kailash Vas-
H    dev P. Parmeswaran, A.K. Panda, Indeevar Goodwill, Bharat Sangal, Dr.
                                      436
                    T.M.A PAI FOUNDATION v. STATE                        437

Roxna Swamy, S.R. Bhat, P. Mahale, T.C. Sharma, P.R. Ramasesh, K.R.              A
Nagaraja, B. Parthasarthy, Ranjit Kumar, A. Mariarputham, Mrs. Aruna
Mathur, Raj Kr. Mehta, Ms. Kiran Suri, Ms. Bina Gupta Rajeev Kr.
Sharma, B.B. Singh, R.B. Misra, Mrs. Ranicchhabra, Ravindra Kumar,
A.V. Rarigam, A.S. Bhasme, A.M. Kbanwilkar, M.J. Paul, Mrs. V.D.
Kbanna, Ms. Rachna Joshi Issar, Arnn K. Sinha, K.R. Chowdhary, K. Ram            B
Kumar, L. Nageshwara Rao, Krishan Mahajan, Suk Sagar, M.K. Dua, (R.
Karanjawala) for Mrs. M. Karanjawala, L.K. Pandey, E.C. Vidya Sagar,
K.S. Parihar, H.S. Parihar, P.P. Singh, S.N. Bhat, Ms. Abha, R. Sharma,
G.K. Bansal and Sanjay Bansal for the appearing parties.

      The following Order of the Court was delivered :                           c
      In Unnikrishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors., (1993]
1 S.C.C. 645, a Constitution Bench of this Court had evolved a scheme
governing admission to private medical engineering and certain other
colleges, keeping in view the positive features of the relevant Central and      D
State enactments. The idea behind the scheme has been set out in Para-
graph 205 of the judgment. In Paragraph 206, it was stated that the scheme
evolved therein "is in the nature of guidelines which the appropriate
governments and recognising and affiliating authorities shall impose and
implement in addition to such other conditions and stipulations as they may
think appropriate as conditions for grant of permission, grant of recogni-       E
tion or grant of affiliation, as the case may be". Clauses (a), (b) and (c) of
Paragraph 6 of the Scheme, in particular, dealt with the fees to be charged
by the professional colleges. It would be appropriate if we extract the said
clauses :
                                                                                 F
        "(6)(a) Every State Government shall forthwith constitute a Com-
        mittee to fix the ceiling on the fees chargeable by a professional
        college or class of professional colleges, as the case may be. The
        Committee shall consist of a Vice-Chancellor, Secretary for Educa-
        tion (or such Joint Secretary, as he may nominate) and Director,' G
        Medical Education/Director Technical Education. The Committee
        shall make such enquiry as it thinks appropriate. It shall, however,
        given opportunity to the professional colleges (or their associa-
        tion(s), if any) to place such material, as they think fit. It shall,
        however, not be bound to give any personal hearing to anyone or
        follow any technical rules of law. The Committee shall fix the fee H
    438                  SUPREME COURT REPORTS [1996) SUPP. 4 S.C.R.

A           once every three years or at such !auger inilervals, as it may think
            appropriate.

            (b) It would be appropriate if the U.G.C. frames regulations under
            Section 12-A(3) of the U.G.C. Act, regulaling the fees which the
            affiliated colleges, operating on no-grant-in.-aid basis, are entitled
B           to charge. The Council for Technical Education may also consider
            the advisability of issuing directions under Section 10 of the
            A.LC.T.E. Act regulating the fees that may be charged in private
            unaided educational institutions impartin,g technical education.
            The Indian Medical Council and the Central Government may also
c           consider the advisability of such regulation as a condition for grant
            of permission to new medical colleges under Section 10-A and to
            impose such a condition on existing colleges under Section 10-C.

            (c) The several authorities mentioned in sub-paras (a) and (b) shall
            decide whether a private educational institution is entitled to
D
            charge only that fee as is required to run the college or whether
            the capital cost involved in establishing a college can also be passed    •
            on to the students and if so, in what manner. Keeping in view the
            need, the interest of general Public and of the nation, a policy
            decision may be taken. It would be more appropriate if the Central
E           Government and these authorities (U.G.C., I.M.C. and A.l.C.T.E.)
            coordinate their efforts and evolve a broadly uniform criterion in this
            behalf. Until the Central Government, U.G.C., l.M.C. and
            A.LC.T.E. issue orders/regulations in this behalf, the Committee
            referred to in the sub-para (a) of this para shall be operative. In
            other words, the working and orders of 1ehe Committee shall be
F
            subject to the orders/regulations, issued by Central Government,
            U.G.C., l.M.C. or A.I.C.T.E. as the case may be."

         2. Pursuant to the directions contained in Paragraph 6, a tentative
 1 exercise was done by the authorities including certain State governments,
G which was placed before this Court. This Court wa.s, however, :not satisfied
   with the manner in which it was prepared and the unrealistically high level
   of fees suggested. In that view of the matter, certain tentative orders were
   passed for the Academic Year 1993-94 including the fees to be charged by
   the said institutions. The order is dated October 7, [1993], reported in
H 1993(4) 4 S.C.C. 276. The idea than was that the authorities rnferred to in
                    T.M.A PAl FOUNDATION v. STATE                        439

Paragraph 6 of the Scheme shall prepare a proper scheme consistent with A
the ground realities and that the Orders dated October 10, 1993 were to
be only tentative in nature. Since no sucli scheme was coming forward
from the side of the authorities, this Court had no option but to pass fresh
set of orders with respect to Academic Year 1994-95. This Order is dated
May 13, 1994, reported in 1994 (4) S.C.C. 728. The situation did not
                                                                             B
improve even by the Academic Year 1995-96 and hence, this Court was
obliged to pass yet another order on August 11, 1995 [1995] 5 S.C.C. 220
applicable for the Academic Year 1995-96. The fees fixed for each of the
academic years. varied having regard to the material placed by the parties
before us.
                                                                                c
      3. On May 10, 1996, this Court passed another Order stating that the
orders passed on August 11, 1995 with respect to Academic Year 1995-96
shall continue to apply for the next academic year as well, i.e., 1996-97.
Even so, a number of Interlocutory Applications are filed by the various
medical and engineering colleges, their associations and other persons D
seeking a variety of directions. We have heard the counsel. The following
orders are made which shall be of general application. These directions shall
be in addition to, in continuation of and in clarification of the earlier
Orders including the Order dated 11th August, 1995, as extended by Order
dated 10th May, 1996.
                                                                                E
      4.(i) It is directed that the fees fixed for each of the Academic Years
1993-94, 1994-95 and 1995-96 shall be confined to that respective year only.
By way of illustration, a student admitted against a payment seat in
M.B.B.S. Course for the Academic Year 1993-94 in a college having its
own hospital facility shall pay Rs. 1,40 lakhs for that year. For the next
academic year, i.e., 1994-95, he shall pay only Rs. 1.10 lakhs and for the      F
Academic Year 1995-96, he shall pay only Rupees seventy five thousand.
Similarly, for Academic Year 1996-97 too, he shall pay a sum of only
Rupees seventy five thousand. This does not, however, mean that he shall
be entitled to claim refund of any part of the amount on account of the
fees paid by him for any of the said earlier years. The Order of this Court     G
dated 11.12.1995 in Interlocutory Application No. 40 in Writ Petition (C)
No. 317 of 1993 does not say otherwise and shall not be understood as
directing otherwise.

     (ii) The fee structure and all other directions provided in this Court's
Order dated August 11, 1995 (applicable for the Academic Year 1995-96) H
    440                    SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A shall also apply to and continue to apply for the Academic Year 1996-97.
    The N.R.l. quota and all other particulars shall be the same. There shall
    be no change in that behalf.

           (iii) It is made clear that the Order dated May 10, 1996 shall apply
    to all States including the State of Maharashtra. In other words, the Order
B   applies to the professional colleges in all the States, irrespective of the fact
    whether such colleges or the States are parties to the said order or not.

          (iv) It is made further clear that with effect from the Academic Year
    1995-96 free seat students shall pay the fees prescribed in the Order dated
C   August 11, 1995, even though these students may have been admitted
    during the Academic Year 1993-94, or for that matter during the Academic
    Year 1994-95.

          (v) There shall be no change in the fees for engioeering colleges. The
    N.R.l. quota for them shall remain at five percent.
D
           (vi) A request is made on behalf of the engineering colleges that the
    governments, in particular, the Karnataka government should be directed
    to specify a last cut-off date for allotment of students, whether in free seats
    category or in the payment seats category, and that if all the seats are not
    filled up, in any of the above categories, by the said last cut-off date, the
E   colleges should be left free to fill up those seats on their own account and
    in their discretion. Grievance is made that on account of non-specification
    of such a last cut-off date, a number of seats in many engineering colleges
    are remaining vacant, particularly in the payment seats category, which is
    making it impossible for the colleges to function or to continue to function,
F   as the case may be. This plea is rebutted by the learned counsel appearing
    for the State of Karnataka. The learned counsel for the State contended
                                                                                       "
    that Rule 10 of the Karnataka Selection of Candidates for Admission to
    Engineering, Medical and Dental Courses Rules, 1993, as amended in
    1996, fully safeguards the interests of colleges and fully allays the apprehen-
    sion and grievance aforesaid. By way of the said amendment, it is pointed
G   out, clause (g) is added in sub-rule (3-A) of Rule 10 which reads : "(g)
    After the closing date for admission, as fixed by the Government is over,
    a reconciliation meeting regarding the number of unfilled and Un-allotted
    seats shall be held between the C.E.T. Cell. The Directorate of Technical
    Education, Directorate of Medical Education and the respective colleges
H   and after identifying the vacant seats, issue Notification regarding suclo
                    T.M.APAIFOUNDATIONv. STATE                              441

seats by the concerned Directors. Such seats shall be filled by the Colleges." A
In our opinion, the said clause is a salutary one. All that we need to add
to the said clause is that the action contemplated therein shall be taken
within fifteen days of the closing date for admission. Any seats remaining
unfilled thereafter can be filled by the management of the private engineer-
ing colleges on their own and in their discretion. This direction shall not
                                                                               B
apply to medical/dental colleges.

        (vii) So far as the thirty five percent payment seats in medical
colleges in the State of Karnataka are concerned (i.e., after providing for
fifty percent free seats and fifteen percent N.R.I. quota), the said seats shall
be· filled in the same proportion as between Karnataka an non-Karnataka            C
students as has been specified for the Academic Year 1995-96, viz., twenty
percent for Karnataka students and fifteen percent for non-Karnataka
students. It is further directed that if any of the seats in twenty percent
meant for Karnataka students remain vacant, they shall be filled by students
from among the non-Karnataka students. The allotment of the students               D
shall be governed by the 1993 Admission Rules of Karnataka aforesaid.

       5. W~ must express our distress at the inaction of the authorities
pursuant to Para 6 of the Scheme aforementioned. •Though a period of
more than three years have passed by since the decision in Unnik1ishnan,
the authorities mentioned in the said paragraph have not come forward E
with a workable, realistic and just fee structure, with the result that year
after year, this Court is practically being forced to fix the fee on a tentative
basis. Fixing the fees is not the function of this Court. It is the function of
the Government, the affiliating Universities and the statutory professional
bodies like, University Grants Commission, Indian Medical Council and F
All-India Council for Technical Education. Atleast now, we expect the
concerned authorities to move in the matter with promptitude and evolve
an appropriate fee structure. While doing so, it is made clear, they shall
not feel shackled by the Orders made by this Court from time to time
relating to fee structure. It shall be open to them to evolve such fee
structure as they think appropriate, in such terms, and subject to such G
conditions as they feel are in the interests of the student community, the
private professional colleges as also in public and national interest. We
hope and trust that the fee structure to be evolved by them would take into
consideration the ground realities and would be realistic and practical from
the point of view of all concerned. In particular, we request the Central H
    442                   SUPREME COURT REPORTS (1996] SUPP. 4S.C.R.

A Govemment, including the Ministry of Education (Ministry of Human
    Resources Development), to take immediate steps to convene a meeting
    of all the concerned authorities as contemplated by Paragraph 6 of the
    Scheme and ensure that a proper fee structure is evolved for the medical,
    dental and engineering colleges throughout the country. It shall be open to
    the authorities to fix separate fee structure for each for the State. if such
B   a course is warranted. It may also be open to the authorities to fix different
    fee structure having regard to the location of the colleges, to wit, a college
    in the city of Bombay may be allowed a different level of fees than a similar
    college (with similar facilities) situated in a rural area. To reiterate, the
    Central Government and the authorities concerned shall be free to evolve
c   the fee structure in such appropriate manner as they think just and equi-
    table to all concerned. We hope and trust that this would be done within
    a period of three months from today and the matter brought to the notice
    of this Court forthwith. We wish to make it clear that with effect from the
    Academic Year 1997-98, it shall be the responsibility of the authorities
    aforesaid to prescribe the fee payable in these colleges.
D
          6. So far as the modification of the scheme contained in Unnik1isl111an
    in concerned, that is a matter pending before this Court separately.
    Probably that may have
                         v
                             to be done by a larger Bench as indicted in one of
    our earlier orders. We are, therefore, not making any directions in that
E   behalf.

           7. Ordered accordingly. All the Interlocutory Applications are dis-
    posed of. These orders are to be communicated forthwith to the Secretary,
    Ministry of Human Resource Development, Government of India and the
    Chief Secretaries tu all State governments, Administrators of Union ter-
F   ritories as well as to the University Grants Commission, Indian Medical
    Council, All-India Council for Technical Education and Indian Dental
    Council.

    R.P.                                                    Petition disposed of.