These batch of writ petitions are filed by students, who were admitted to various programmes, namely, MBBS, BDS, B.Sc nursing etc., in the Co-operative Medical College, a self-financing Institute, now taken over by the Government, feeling aggrieved by the fees demanded by the Principal based on the fees paid by them at the time of admission while it was a self financing Institute.
2. Cochin Co-operative Medical College was established in the year 2000 under the Co-operative Academy of Professional Education (CAPE), an autonomous body registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955.
3. The Government of Kerala by Government Order dated 05/04/2013 has taken a policy decision to prepare an evaluation report on the assets and liabilities of the College in order to takeover by the Government. The Government has taken over the Institute from the academic year 2014-15 onwards. These petitioners were admitted to various programmes based on consensual agreement entered into with the Government. The students are of three categories; 50% taken up by the Government from the rank list prepared by the Commissioner of Entrance Examination (CEE); 35% of the seats treated as Management seats based on the option exercised by the students for Management seats, whose names are figured in entrance list prepared by the CEE and; the remaining 15% seats are filled up by Non- resident Indians. Therefore, based on the pattern of admission, fee structure also varied; for example:- the students admitted for the year 2013-14 under Government quota (general quota) is Rs.1,50,000/-, Management quota students will have to pay an amount of Rs.6 lakhs and, the students from the Non-resident Indian quota will have to pay Rs.11 lakhs. The students who were admitted based on the classification above are directed to pay the fees at the rate paid by them for admission for this academic year. The case of the students is that they are not liable to pay the fees that owed to the former self financing Institute, once the Government has taken over the Institution. Government, it seems have treated the liability of the fees payable by the students as an asset while working out the evaluation of the assets and liabilities of the Institution.
4. Detailed arguments have been addressed by the learned Senior Counsel Shri M.K.Damodaran, learned counsel Shri Devan Ramachandran and Shri Mohammed Shah and also Shri Rajesh for the petitioners. Learned Senior Counsel Shri M.K.Damodaran addressed that the Principal has no power to issue notice demanding fees payable. It is also submitted that once the Institution is taken over by the Government, the students, who were originally admitted as students in self financing Colleges, no longer remain as students under self financing Colleges, and they all have become the students under the Government. Therefore, the Government cannot demand the fees that they were liable to pay to the self financing Institute. It is submitted that from the current academic year onwards, the students are only liable to pay Government fees and, therefore, differentiating the students in a Government College is discriminatory. Learned counsel Shri Devan Ramachandran submits that by taking over the self financing College by the Government, difference between the self financing college and the Government is obliterated. It is further submitted that different components of fees payable by the students in self financing Institutions are based on the requirement of the self financing Institutions to expand the Institution and the Hon’ble Supreme Court has laid down
the parameters for collecting fees based on this concept. He relied on the judgments in Islamic Academy of Education and another Vs. State of Karnataka and others [(2003) 6 SCC 697], T.M.A.Pai Foundation and others Vs. State of Karnataka and others [(2002) 8 SCC 481] and P.A.Inamdar and others Vs. State of Maharashtra and others [(2005) 6 SCC 537] and submits that based on the principles evolved in the above judgment, the Government cannot charge the fees payable to the self financing Institute. Learned counsel Shri Mohammed Shah also argued that contract entered is between the students and the self financing Institute and, therefore, their contract will not enure to the benefit of the Government, to demand fees payable by the students in terms of the contract. Shri Rajesh submits that the Government's action must be actuated by fairness and, discriminating students in Government Medical College for payment of fees is arbitrary and unreasonable. On the other hand, Shri Roshan D.Alexander submits that students are not entitled to
reduction of fees to bring them at par with the students, who are admitted under lower fee structure in the Government Institutions. It is also submitted that these students form different classes and classification is based on the source of admission and, therefore, Government is entitled to claim different fee structure based on the original admission.
5. The Government has taken over this Institute from the academic year 2014 onwards. Admittedly, the students who are admitted to various programmes from the academic year 2014-15 onwards are liable to pay the fees that are payable in Government Institutions. Therefore, the question that arises is:
i) Whether, the Government, after taking over the self financing Institute is entitled to collect the fees from the students who were admitted in self financing Institute at the same rate payable to self financing Institute.
6. Education is the most important function of the State. The State may impart education, directly or indirectly, through Institutions. In Mohini Jain v. State of Karnataka [(1992) 3 SCC 666] the challenge was against a notification regulating tuition fees to be charged by private medical colleges in Karnataka State. The fees to be charged by the private colleges from non Karnataka students was higher when compared to the fees payable by the Karnataka students. The Hon'ble Supreme Court held that the same is discriminatory and amounts to charging capitation fees and would therefore be illegal. The correctness of the decision was considered in Unnikrishnan J.P. and others Vs. State of Andhra Pradesh and others [(1993) 1 SCC 645]. Therein, the Hon’ble Supreme Court was of the view that if the ratio in Mohini Jain’s case is applied, educational Institutions will have to be closed down and held that private unaided educational Institutions are entitled to charge higher fees than that charged by the Government Institutions. However, they cannot claim fees exceeding the limit fixed by the State. It was further held that commercialisation of education was not permissible being opposed to public policy and Indian tradition and, therefore, charging capitation fee is illegal. In T.M.A.Pai Foundation's case [(2002) 8 SCC 481], the main question is whether Unnikrishnan’s case (supra)requires reconsideration. The Hon'ble Supreme Court pointed out, Unnikrishnan’s case has the effect of nationalising education in respect of important features which are the right of private educational Institutions to give admission and to fix fees. The essential point that was considered in T.M.A.Pai Foundation's case is with regard to admitting students by private Institutions and fixing the fees. The Hon’ble Supreme Court also have elaborately distinguished between minority and non-minority Institutions and aided and unaided Institutions for the purpose of admitting students and fixing fees. The Hon’ble Supreme Court held that the scheme framed by the Unnikrishnan’s case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, affirming the Unnikrishnan’s judgment regarding capitation fees as correct held that reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering. It is to be noted that in Mohini Jain’s case the challenge was based on the ground that every citizen has fundamental right to education and, private educational Institutions discharging State duty cannot claim higher fee than the Governmental Institution. This challenge was sustained in Mohini Jain’s case. However, in Unnikrishnan’s case, it was held that fundamental right is not available to citizens above the age of 14 years and directed the State to formulate a scheme for granting affiliation and fix maximum fees that could be levied by the Institution. However, in T.M.A.Pai Foundation's case, Institution has given an autonomy to fix the fees not amounting to capitation or profiteering but to meet cost of expansion or any augmentation of facilities. In Islamic Academy of Education's case, essentially, the issue arose out of the direction in Islamic Academy regarding the fixation of fees by the Institution. It was held therein that there can be no fixation of fees in rigid structure by the Government. Each Institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the Institution and to provide facilities necessary for the benefit of the students. The Apex Court also directed the State to constitute a committee and directed that once fees are fixed by the Committee, the Institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. Thus, it can be seen that this is how self financing colleges are able to fix the fees for their educational Institutions run as unaided Institutions. In Islamic Academy of Education’s case, the question whether in private Institution can there be a Government regulation for admission, was also considered. The Hon’ble Supreme considered this issue in the backdrop of the finding in T.M.A.Pai Foundation's case wherein it was held that unaided professional Institutions are entitled to autonomy in the administration, at the same time, they do not forgo or discard the principle of merit. It was also held in T.M.A.Pai Foundation's case that it would therefore be permissible for the university or the Government at the time of granting recognition to prepare a private unaided Institution to provide for merit basis selection while, at the same time giving the Management sufficient discretion in admitting students. In Islamic Academy of Education's case the Hon’ble Supreme Court took the view that the Management could select students of their quota either on the basis of common entrance test conducted by the State or on the basis of common entrance test to be conducted by association of all colleges of a particular type in that State. In P.A.Inamdar's case it was held by the Hon’ble Supreme Court that the State has no power to insist on seat-sharing in unaided private professional Institutions by fixing a quota of seats between the Management and the State. The Supreme Court permitted a limited reservation of seats not exceeding 15% for non-resident Indians.
7. In the above background of the law evolved regarding fee structure and admission, issues involved in these writ petitions have to be decided. Though this Institute was free to admit students on their own through an admission process evolved by common entrance examination and based on permitted fees by the committee, Management of the Institute had entered into a consensual agreement with the Government to have admission process consistent with the principles evolved through the aforenoted judgments. By this consensual agreement, the self-financing Institute in this case has permitted the Government to allot 50% of students on a fee fixed by the Government and 35% of the seats by the Management on fees which according to them is approved by the committee for Management and NRI quota. There is no dispute to the fact that the fees do not exceed the parameters evolved in the judgment and the students have not chosen to challenge this fee structure either at the time of admission or after. The only dispute now pertains to collection of fees by the Institute on the ground that Government Institute cannot claim fees at par with self financing Institute as the self financing Institute is allowed to collect fees based on the parameters fixed by the Hon'ble Supreme Court considering their requirement and the same would not apply in the matter of collection of fees by the Government. The learned counsel point out that once the Government has taken over the self financing Institution, the students in a Government college cannot be classified as students of a self financing Institute. Therefore, it is submitted that the petitioners are only liable to pay the fees that are payable by the students admitted under the Government quota.
8. It seems the petitioners are harping on a point that when there is change of Management, it will deprive the character of the relationship of the student with the Management and when the Government has taken over the Institute, that would change the character of relationship as that of the Government and the student. The students are admitted based on the consensual agreement by the Management with the Government. They are allotted to the Institute based on the agreement by the Management with the Government. But the legal relationship of the student is not with the Management but with the Institute. That means terms and conditions on which students are admitted would bind them in their relationship with the Institute. Change of character of the Management will not deprive the legal relationship of the student with the Institute. Students cannot be aggrieved by the change of the Management. Students are only having a legal relationship with the Institute and not with the Management. Thus, students are liable to pay the fees that was agreed to be paid to the Institute at the time of admission. The Institute is distinct from the Management which administers the Institute. Therefore, the students cannot contend that they are not liable to pay the fees demanded by the Institute on account of the change of the Management.
9. As has been noted, the liability of the student is to the Institute, as the legal relationship of the student is with the Institute. The State is stepping into the shoes of earlier Management of the Institute. Students have no case that they are not liabile to pay any fees to the Institute. The amount liable to be paid by the students has already been shown as an asset of the Institute. The State, therefore, can recover this amount from the Institute. It is not the State demanding the fees from the students but on the other hand, fees is demanded by the Institute itself. Thus, the Principal of the Institute can demand the amount from the students.
10. Next is the larger issue to be considered on the parameters of the judgments referred above and also with reference to Article 14 of the Constitution of India. According to the petitioners, this fee structure is fixed based on the requirement of the Institution being run by a self-financing college and those factors are absent while the Government is demanding the fees. It is also argued that there is only one class of students; all are Government college students and, therefore, differentiating Government students in the matter of fees is arbitrary and unsustainable. As has been noted, evolution of law in fixing fees by the Hon’ble Supreme Court in various judgments is based on the requirement of the Institution. Obviously, those factors are not referable to the Institute being run by the Government. Therefore whether the Government, like any self financing Institute can claim fees payable by the students in unaided Institution. The Government may establish any Institute based on the policy formulated. Government may offer free education, subsidized education or may offer education based on fees payable by the students. There is no law that says that Government should fund the higher education. It is purely within the realm of policy choice for the Government to decide to control and funding of an Institution of higher education run by the Government. There is no anathema for the Government in collecting any fees from the students in such Institute. The judgments in P.A.Inamdar (supra) and in by Islamic Academy of Education's (supra) are evolved on the premise of the State control of private education and fixing the parameters of fees by the private unaided Institutions. Those judgments have nothing to do with the fixation of fees by the Government. It is for the Government to decide whether to collect fees or not, or whether to be subsidized or not. It is to be noted that there is no fundamental right conferred on the citizens to claim for higher education to be provided by the State. Thus, I am of the view that it is for the Governent to decide whether Government should collect fees from the candidates who are admitted in self financing colleges when same is taken over by the Government. There is no principle or law that prevents the Government from collecting fees in par with fees payable in private unaided Institution.
11. The next point that arises is whether classification for collecting fees based on admission made by the self financing Institute is violative of Article 14 of the Constitution of India. This argument is based on the fact that the Institute has become a Government College and, therefore, there is only one class of students, the students of the Government Institution. The classification is based on source of admission. Admittedly, students are admitted on different source and parameters. Those who were admitted based on the common entrance examination, exercised their option for admission to this Institute. NRI quota admission was also based on different parameters. The concept of equality means equal treatment in equal or similar situation. In similar context, this Court in Hanna Thasnim v. State of Kerala [(2014) 2 ILR 388], wherein the challenge was with regard to differential fees in private Institutions and, the Division Bench held as follows:
“The principle of equality does not mean that every law or administrative decision must have universal application for all persons who are not by nature or circumstances in the same position, as the varying needs of different classes of persons often require separate treatment. It would be inexpedient and incorrect to think that all laws or administrative decisions have to be made uniformly applicable to all people in one go. In the sphere of legal and contractual relations, the State, its instrumentalities and public authorities are enjoined in a manner that is fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good. The action must be in the interest of general public and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision.”
Thus, it is open for the Government to collect different rate of fees from the students in the Institute based on the different source of admission.
The classification is based on reasonable criteria and cannot be annulled as violative of equal protection.
12. In Cochin University of Science and Technology
v. Thomas P.John [2008 (2) KLT 718], the Hon’ble Supreme Court held that “it would not be open to the students to contend that notwithstanding that they have been admitted on certain fee structure, they were entitled to claim reduction in fee to bring them at par with the students admitted later under different fee structure”. It is common knowledge that the State is funding education in all the medical colleges in the State. The State is not under obligation to provide funding of tuition fees to the students, who are admitted based on a different source of admission. If the State makes any attempt to provide any such measures to subsidize the tuition fees to the petitioners, who were admitted based on their option exercised and also in NRI quota, that would amount to offending Article 14 of the Constitution of India. The students, who had higher ranking could not exercise
their option for admission into this Institution under NRI quota or Management quota or Government quota (fees was higher compared to the Government Institutions) for want of resources and consciously abstained from exercising option for admission in this Institute. Any concession to the petitioners would be an outright affront to the legitimate aspiration of those students. In view of the above, I do not find any merit in these writ petitions. Accordingly, all these writ petitions are dismissed. However, the petitioners are given time to pay the tuition fees, if the time to pay the fees has been already expired, upto 15/11/2014. No costs.
A.MUHAMED MUSTAQUE, JUDGE ms