Karnataka High Court
Khaja Education Society And Others vs The State Of Karnataka And Another on 20 April, 1993
Equivalent citations: AIR1993KANT306, ILR1993KAR1283, 1993(2)KARLJ129, AIR 1993 KARNATAKA 306, (1993) ILR (KANT) 1283, (1993) 2 KANT LJ 129, (1993) 6 SERVLR 390
ORDER
1. In these petitions under Art. 226 of the Constitution, the petitioners have sought for quashing the Government Order No. FD.19.TEC 91 dated 7-5-1991 governing admission to private Engineering Colleges and also the Government Order bearing No. MED.166.HFW.91 dated 25-5-1991 relating to admission to 1st M.B.B.S. in private Medical Colleges. They have also sought for quashing the communication bearing No.DTE.9/ACN 1/91 dated 16-5-1991 issued by the Director, Technical Education.
2. In addition to this, in W.P. Nos. 13687 to 13689 of 1991 (Engineering), W.Ps. 14001 to 14007/91, W.Ps. 14055 and 14056/91, W.P. 14716/91 and W.P. 14506/91 the petitioners have sought for a declaration that the provisions contained in the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984, (hereinafter referred to as 'the Act') are unconstitutional and to strike down the same. To be specific in W.P. Nos. 14001 to 14007/91 the petitioners have prayed for declaring Section 4(2) of the Act as unconstitutional, whereas in W.P. Nos. 13687 to 13689/91 and W.P. 14506/91 the petitioners have prayed for declaring the whole Act as unconstitutional. Whereas in W.P. Nos. 14055 and 14056/91 and W.P. 14716/91 the petitioners have sought for striking down Sections -- 3, 5, 6, 7, 8 and 9 of the Act as being violative of Articles 14, 19, 21 and 300A of the Constitution. In W.Ps. 14055 and 14056 of 1991 the petitioners have also sought for quashing the Govt, Order bearing No. ED 131 TEC 87 dated 26-5-1989 (Annexure-A) and the Government Order No. ED.151 TECH 88 dated 31-5-1989 (Annexure-B) and the Government Order No. ED.63 TECH 89 dated 4-5-1989 (An-nexure-C). In W.P. 14716 of 1991 the petitioner has also sought for quashing the order (which is described as 'Press Note') bearing No. DTE 15 ACM (1)91 (Annexure-A) issued by the Director of Technical Education.
3. In most of the writ petitions, the petitioners have prayed for issuing a writ in the nature of mandamus directing the respondents to forbear from prescribing any procedure and time limit for admitting the students within the management quota or to restrain the respondents from interfering with the admission of students to the petitioner institutions to the extent of their intake. In W.P. 13833,91 and W.P. 14286,91 the petitioners have alternatively prayed for a declaration that the Government Order dated 7-5-1991 and the letterdated 16-5-1991 issued by the Director of Technical Education pursuant to the Government Order dated 7-5-1991 do not apply to the petitioners institutions.
3A. These writ petitions fall into two groups. One group constitutes the management of the Private Engineering Colleges and another group constitutes the management of the Private Medical Colleges. W.P. Nos. 13216/9I, 14001 to 14007/91, 13687 to 13689/91, 11622/91, 13833/91, 17369/91, 14055 and 14056/91, 14286/91 and 14716/91 are preferred by the Private Education Institutions which run the Private Engineering Colleges. W.P. Nos. 14329/91, 17345/91 and 14506/91 are preferred by the Private Educational Institutions which run the Private Medical Colleges.
4. Another aspect of these writ petition is that W.P, Nos. 13833/91 and 14286/91 are filed by the institutions founded for the benefit of the linguistic minority, namely, Tulu. W.P. Nos. 17369/91 and 17345/91 are filed by the institutions established for the benefit of the linguistic minority, namely, Konkani. W.P. No. 11622/91 is filed by the institution established for the benefit of the linguistic minority, namely, Tamil. Whereas, W.P. 14329/91 is filed by the institution established for the benefit of the religious and linguistic minority, namely, Muslims and Urdu. These petitioners have claimed protection under Article 30 of the Constitution.
5. All these petitions except writ petition 17369 of 1991 have been referred by a Division Bench to a Full Bench by a common order dated 14-8-1991. Writ petition No. 17369 of 1991 has also been referred by a Division Bench to a Full Bench by a separate order dated 14-8-1991. Both the referring orders are similarly worded. Therefore, one of them is extracted, which reads thus:
"What is canvassed before us is the correctness of the judgment rendered by the Division Bench in Tejaswini Patil v. Bangalore University, and the subsequent directions issued on 18-4-1991 which according to Mr. Santosh Hegde go beyond the purview of the writ petitions. We think the matters will have to be heard by a Full Bench. Accordingly, it will go before the Full Bench.
Post before the Full Bench on 16-8-1991."
In addition to the aforesaid orders referring these writ petitions to a Full Bench, there is a separate order passed by the Hon'blc the then Chief Justice on 14-8-1991 in exercise of his inherent/administrative powers, constituting this Fill Bench which can very well be described as Special Bench consisting of 3 Judges to hear and decide these writ petitions. These facts as to referring these petitions to this Bench consisting of three Judges are stated at this stage because one of the contentions of the Respondents is that these petitions have not been validly referred to a Full Bench and this Full Bench Special Bench is not lawfully seizen of these petitions and is not competent to decide the same.
Facts leading to the present writ petitions:
6. In the Slate of Karnataka there are several private educational institutions established by the Societies and Institutions with an owed object of providing educational facilities to the public in general and several other sections of the society consisting of socially, economically and educationally backward classes, in the several regions of the State including the backward areas. Some of these institutions are established by the linguistic and religious minorities and some by others. These educational institutions run various colleges in which engineering as well as medical courses leading to graduation are tuaght according to the requirements of the Universities in the State within whose jurisdiction these colleges are situated and are affiliated lo those Universities. These institutions are unaided. They do not receive any aid from the State. They meet the cost of maintaining and running the institutions by collecting tuition fee donation, if any, and other amount which is called as capitation fee. It must also be said to the credit of these institutions that most of them maintain good education standard and some of the colleges maintain better education standards and, discipline than any other colleges of the Govt. and the Universities in the State. In the areas in which these colleges are situated, the residents of those areas could not have been able to receive higher education in Engineering and Medical, if these colleges had not come into existence in those areas. There is no doubt that they have done and have been rendering great service to the society in the field of education which the Govt. has failed to do.
7. The State Government with a view to abolish capitation fee passed the Act. The validity of the Act was challenged in W.P. 12334 84 and connected petitions by Bapuji Educational Association and other managements of the private educational institutions and also individuals. Learned single Judge of this Court decided the petitions on 3rd September, 1984. The decision is . Learned single Judge allowed the petitions in part. The conclusions reached by the learned single Judge and the directions issued are as follows:
"1. Right to establish and administer educational institutions of the citizens-petitioners is part of the fundamental right guaranteed under Articles 19(1)(g) and 21 of the Constitution. This right is subject to the law made by the Legislature which is not violative of Article 14 and is within the permissible limits specified in Clause (6) of Article 19.
2. The Act is not a law falling within the purview of Article 39(b) of the Constitution as it is not a law meant to provide for the distribution of ownership and control of private educational institutions and therefore not entitled to the immunity afforded by Article 31-C of the Constitution and therefore Its validity can be questioned on the ground of violation of Articles 14 and 19(1)(g) of the Constitution.
3. The provisions of Section 3 read with Section 5(2) of the Act prohibiting the collection of Capitation Fee for ad mission to educational institutions except to the extent permitted by an Order made by the State Government under proviso to Section 3 are not violative of Articles 14 and 19(1)(g) of the Constitution.
4. Section 2(e) and Clause (a) of Section 4(2) of the Act which empowers the Government to fix certain number of seats out of tthe total intake of private unaided educational institutions as Government scats for being filled up by a Committee appointed by the State Government, are violative of Articles 14 and 19(1)(g) of the Constitution. Even on the basis that the object of the Act falls under Article 39(b) and therefore entitled to the immunity of Article 31-C, these provisions have no nexus to the object sought to be achieved and therefore not entitled to the immunity given under Article 31-C.
5. Section 5( 1) of the Act which empowers the Government to fix rate of tuition fee and other fees does not violate Articles 14 and 19(1)(g) of the Constitution.
6. The power to permit collection of Capitation Fee for admission is available to the Government only under proviso to Section 3 of the Act and only so long the proviso exists and the rate of various kinds of fee which could be fixed under Section 5(1) docs not include Capitation Fee for selection for admission to educational institutions.
7. Under proviso to Section 3, the State Government has not only the power to fix the number of seats in respect of which collection of Capitation Fee for admission is prohibited, but also the power to fix maximum rate of Capitation fee for admission which could be collected in respect of other seats.
8. The Government cither before fixing the number of seats in respect of which no Capitation Fee could be collected or in fixing the maximum rate of Capitation Fee permitted to be collected in exercise of the power under proviso to Section 3 or before fixing the rate of tuition fee or other fees under Sec. 5(1) has to comply with he rules of natural justice.
9. Proviso to Section 3 not only creates a duty in the Government to fix the number of scats in respect of which no Capitation Fee could be collected but also to fix the maximum rate of Capitation Fee in respect of other seats and to fix the same having due regard to the fact that the institutions substantially depend for their maintenance on Capitation Fee and tuition fee. Therefore, if the Government does not choose to make am order under proviso to Sec. 3 for next academic year as it would result in immediate prohibition of collection of Capitation Fee. if the Government is requested to fix the same by representation made by all or any of the educational institutions, the Government is under a duty to consider those representations and make appropriate order having due regard to the scope and intendment of these provisions as interpreted in this order.
In the light of the above conclusions. I make the following:
ORDER:
(i) The challenge to the constitutional validity of Section 3 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act. 1984, which prohibits the collection of Capitation Fee for admission except to the extent permitted by an order made by the Government and other provisions necessary for enforcing Section 3, fails and the Writ Petitions are dismissed to that extent.
(ii) A declaration shall issue to the effect that:
(a) Section 2(e) and sub-clause (a) of clause (2) of Section 4 of the Act which empowers the Government to declare a part of the intake of the seats in the educational institutions as Government seats and to make selection for those seats;
(b) The last portion of sub-section (4) of Section 5 of the Act, namely, the words "and to such extent and in such manner as may be specified by order by the Government;"
(c) Sub-section (5) of Section 5 of the Act and sub-section (1) of Section 6 of the Act. which require the petitioners to carry on the management of their educational institutions in the manner prescribed and directed by the Government, are void as offending Articles Hand 19(1)(g) of the Constitution.
A writ in the nature of Mandamus shall issue to the respondents not to enforce the aforesaid provisions against the petitioners.
(iii) The Writ Petitions in so far they relate to the challenge to the Government Order dated 19-7-1984 fixing 40 per cent of the intake as Government seats for the academic year 1984-85 and the Government Order dated 16-8-84 fixing the rate of Capitation Fee and tuition fee is concerned, they are dismissed.
(iv) A Writ in the nature of Mandamus shall issue to the respondents to give opportunity to the petitioners before passing any orders under the proviso to Section 3 of the Act fixing the number of seats in respect of which collection of Capitation Fee for admission is prohibited and the maximum amount of Capitation Fee which could be collected in respect of management seats or fixing the rate of tuition and other fees under Section 5(1) of the Act for the next academic year."
8. This decision was challenged in the appeals filed by the petitioners therein as well as the State Government in Writ Appeals Nos. 1820, 1821, 1823 to 1827. 1882, 1838 to 1854, 1810 to 1816 of 1984. By the time the writ appeals came up for hearing, the State Government had issued a Notification dated 7-7-1988 governing admission to technical courses in engineering and medical science in private educational institutions permitting the educational institutions to collect the fees at a higher rate. The notification had been issued in consultation with the private educational institutions. Therefore, the writ appeals, in terms of the submissions made by the learned Counsel appearing on both sides including the State Government, were disposed of on 2-2-1990 in the following terms:
"5. The proviso to Section 3 of the Act ceased to be operative with effect from 11-7- 1988. A few days prior to 11-7-1988, the State Government issued a notification dated 7-7-1988 governing admissions to technical courses in Engineering in Private Educational Institutions. The petitioners in the writ petitions appear to have accepted the Notification as they did not challenge the same. Thus admission to the aforesaid courses in private educational institutions was governed by the notification dated 7-7-1988 for the academic year 1988-89. The State Government has issued another notification dated 26-5-1989 under which fee structure has been drastically altered. This notification is effective from the academic year 1989-90. Under this notification, the petitioners are permitted to collect the fees at a higher rate. This notification has been issued in consultation with the petitioners i.e., Private Educational Institutions and they have also agreed to it and as per the terms of the notification, they have also surrendered certain percentage of seats to the Government. The Notification dated 26-5-1989 is operative for a period of 5 years from 26-5-1989. Therefore, it follows that the petitioners as on today, in the presence of the Notification dated 26-5-1989 cannot legitimately putforth their grievance of violation of the fundamental rights as raised in the writ petitions. Added to this, the petitioners have agreed to the terms of the Notification dated 26-5-1989 which is saved under the Act after the proviso to Section 3 of the Act ceased to be operative. As already pointed out, the Notification is operative for a period of 5 years.
6. The appeals filed by the petitioners in the writ petitions relate to that portion of the judgment of the learned single Judge by which the validity of Section 3 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 is upheld. The State Appeals relate to striking down of the provisions contained in Section 2(e), sub-cl. (a) of Clause (ii) of Section 4, last portion of sub-section (4) of Section 5, sub-section (5) of Section 5 and sub-sect ion (1) of Section 6 of the Act. The Notifications issued under the provisions of the Act, some of which have been struck down as pointed out, have also spent out because they related to the academic years during which they were issued. Therefore, the validity of these Notifications need not be gone into now. The correctness of the order of the learned single Judge relating to striking down some of the provisions of the Act need not also be gone into in the light of the Notification dated 26-5-1989 issued by the State Government as the notification holds the field for a period of 5 years.
7. What we have stated above, in substance, correctly reflects the submissions made on both the sides. However, it is necessary to keep open all the contentions raised by both the side including the correctness of the conclusions arrived at by the learned single Judge in the judgment under appeal. Thus the subject-matter of appeals impugned shall not be treated as concluded.
8. Accordingly, these writ appeals are disposed of in the light of the notification dated 26-5-1989 on the ground that it is not now necessary to go into the several contentions raised by both the sides. All the contentions of both the sides are kept open as clarified in para 7 above."
9. Thus, as a result of the aforesaid order passed in the Writ Appeals, no finality was attached to the judgment in Bapuji Educational Association Case. The findings recorded therein could not be construed as final and conclusive. Both the sides had challenged the judgment in the Writ Appeals. The contentions raised by both the sides were kept open. Hence, it is open to the petitioners and the Respondents in those Writ Petitions to urge their contentions irrespective of the aforesaid decision in Bapuji Educational Association Case.
10. After the aforesaid Writ Appeals were disposed of on 2-2-1990, Miss. Tcjaswani Patil filed Writ Petition No. 17342 of 1989, before the aforesaid Writ Appeals were disposed of. Both the petitions were referred to a Division Bench and the same were heard and decided by a common order on 16th Jan., 1991. The decision is , Tejaswani Patil v. Bangalore University, Santhosh Kumar v. M. R. Medical College. In those petitions the petitioners therein sought for the following reliefs:
(c) to direct the University and the Medical Colleges i.e., respondent No. 2-4 herein to fill up all the seats on the basis of merit only;
(d) to direct the respondents not to collect the tuition fee in excess of what has been prescribed by the University;
(e) grant Mandamus against the University directing it to enforce the statutes governing the affiliation of the colleges and direct the University to prevent these affiliated colleges from collecting capitation fee and tuition fee at the rate of Rs. 25,000/- per annum and three and half lakhs;
(f) to direct the respondents Nos. 3 and 4 to admit the petitioner to the 1st year M.B.B.S, Course class of any of the medical colleges."
Finding recorded and the directions issued by the Court are as follows:
To sum up, our conclusions are as follow:
(1) Having regard to the object and purpose of the Act, which is the prohibition of collection of capitation fee for admission into private educational institutions and the clear implication flowing from Section 3 of the Act prohibiting the collection of capitation fee, directly or indirectly, and the provisions of sub-section (2) of Section 5 of the Act which prohibits the private educational institutions and/or their Managements from collecting any fees over and above the fees permitted by the Government by an order made under subsection (1) of Section 5 of the Act, the selection for admission to Private Medical Colleges in the State as against Management seats has to be made strictly according to merit among the applicants belonging to any class of persons, if the Management of a private College has earmarked certain number of seats in favour of such class of persons, as also among the rest of the applicants or among all the applicants if the Management has not chosen to set apart any number of seats in favour of any class of persons.
(2) The private Colleges affiliated to a University established tinder the Universities Act. discharge public duty of imparting education leading to conferment of Degrees by the University concerned, and therefore if there is any breach of any provision of the laws regulating their rights, powers and duties or of any public duty on their part, they arc amenable to the writ jurisdiction of this Court under Article 226 of the Constitution.
(3) The provisions of the Act by prohibiting, the respondent-Colleges and or their Managements from collecting any fee, above the fee permitted by the order of the State Government issued under Section 5(1) of the Act, impose a public duty on them to make election for admission on the basis of merit among all the applicants generally as also among the applicants belonging to any particular class; if the Management has in exercise of its right earmarked certain number of seats in favour of such class. Therefore, if in any given case, it is made out that the Management of the College concerned has in breach of this public duly denied admission to the applicant who has secured more marks in the qualifying examination and has admitted an applicant who has secured lesser number of marks, such aggrieved person is entitled to seek a Writ in the nature of mandamus to the Management as well as the college concerned to admit such applicant to the course concerned in the College concerned, under Article 226 of the Constitution, (4) On the facts of this case, it is established that the petitioner in Writ Petition No. 16601 of 1990 was entitled to get admission both to Dr. Ambedkar Medical College as also to the Kempegowdit Institute of Medical Sciences having regard to the marks secured by her, as it is established that large number of students who have secured lesser marks than her have been admitted to those colleges. The petitioner in W.P. 17342 of 1989 was entitled to be admitted to M. R. Medical College, Gulbarga. as admittedly several students who had secured lesser marks than him in the qualifying examination had been admitted to the -aid College. Therefore, each of the petitioners is entitled for the issue of an appropriate writ directing the Management concerned to admit him to the Medical Degree course in the College concerned and as major part of the academic year is over by now, he is entitled to the issue of a direction for his admission to the Medical Degree course during the next academic year.
(5) The challenge to the Notification dated 5-6-1989 issued by the State Government under sub-section (1) of Section 5 of the Act fixing higher rate of Rs. 25,000/- per annum as tuition fee for the Medical Degree course for students admitted against Management scats in private Medical Colleges, compared to the fee of Rs. 2,000/- per annum only for students admitted to Government Colleges or against Government seats in Private Medicai Colleges, has to fail, for the reason, as held by this Court in the case of Bapuji Educational Association's case the Management concerned have the Fundamental Right to establish and run the Medical Colleges under Articles 14, 19 and 21 of the Constitution and without collection of a reasonable amount from the students either in the form of capitation fee or in the form of tuition fee, the exercise of that right becomes impossible as it is impossible to run a private Medical College by collecting only a tuition fee of Rs. 2,000-00 per annum.
(6) There is substance in the allegations made by the petitioner in W.P. No. 16601 of 1990 to the effect that the Managements of Private Medical Colleges are indulging in clandestine collection of capitation fee in addition to the higher rate of tuition fee fixed by the Government, on account of the failure of duty on the part of the State Government in framing Rules under Section 14 of the Act requiring the Private Medical Colleges to make admission strictly according to merit on the lines indicated in paragraph 54 of the judgment of this Court in the case of Bapuji Educational Association's case instead of the evil of collection of heavy amount as capitation fee for admission into those Colleges getting abolished, the evil has aggravated."
11. Thereafter, Kumari Tcjaswini Patil filed an application (I.A.V.) in Writ Petition No. 16601 of 1990, seeking a direction to the Government to implement the order passed on 16-1-1991, in the Writ Petition before the end of March, 1991, in the ends of justice. It was suited in the application that the direction issued on 16-1-1991, directing the State Government to frame the rules under Section 14 of the Act immediately, had not been carried out even though the father of the petitioner had sent a letter on 11-3-1991, to the State Government and also to the concerned Minister requiring them to frame the rules, that the petitioner had learnt that the Stale Government had not framed the rules as directed by the Court; that the academic year 1991 would come to an end within a few weeks; that the purpose of issuing the direction to the Government would be defeated if the Government were to fail to obey the order and dame the rules. Therefore, the petitioner prayed for issuing a necessary direction to the State Government to frame the rules before the end of March. 1991.
12. The Court passed the following order on 18-4-1911.
"This application is made in W.P. No. 16601 of 1990, disposed of by our order dated 16-1-1991. In the said writ petition, the grievance of the petitioner was that though she had secured higher, percentage of marks, she was not given admission in the respondent private medical college and a large number of students who had secured less marks than her had been given seats and this was on account of the petitioner's inability and refusal to pay heavy capitation fee, as demanded in addition to exhorbitant rate of tuition fee fixed by the Government under Section 5 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act. 19S4 ('the Act' for short).
2. In view of the great public importance involved in the ease, the petitioner had also sought permission to prosecute the petition in a representative capacity. The permission was granted and public notice was also taken in that regard. The writ petition was allowed by our order dated 16-1-1991. The relevant operative portion of the order reads:--
"(i) The writ petition is allowed.
xxx xxx
(iii) A direction shall issue to the State Government to take appropriate steps including framing of Rules under Section 14 of the Act in the light of the observations made by this Court in the case of Bapuji Educational Association's case (1), which is extracted in paragraph 20 of this order, and in the light of this order immediately."
3. In the present application the petitioner has stated that though 3 months had elapsed from the date of the issue of the writ as above, no rules have been framed by the Government. Learned Counsel for the petitioner submitted that if no rules arc framed immediately, the private colleges will continue to make selections as was done last year and by the time rules are framed, admission for academic year 1991-92 might be over and the writ issued would become futile at least for this academic year and therefore, the petitioner has sought for fixing a time limit for framing of the rules, as time for compliance was not fixed in our order.
4. When this application came oh the last occasion, we directed the Government Advocate to ascertain from the Government and to tell us as to whether the rules have already been framed by the Government and if not as to whether the rules will be framed and published. The learned Government Advocate today submitted that Rules have not been framed so far and he is not in a position to state as to when the Rules will be framed and published by the State Government.
5. The learned Counsel for the Bangalore University submitted that unless the Rules are framed the University will also be helpless in the matter of exercising control over the private colleges in the matter of admission according to merit.
6. After hearing the learned Counsel for the petitioner, and the learned Government Advocate, we are of the view that it is just and expedient to direct the Government to issue directions to all the colleges in conformity with the writ issued by us pending framing of the Rules under S. 14 of the Act.
7. Accordingly, we make the following order: -
1) Respondents 2 and 5 are directed to issue directions to each of the colleges falling within the purview of the Aet as follows:--
I) Every college shall invite applications for admission, fixing the last date for receipt of the application.
II)The selection for admission shall be made only after the last dale fixed for receipt of the application is over and on consideration of comparative merit of all the applicants together.
III) The selection shall be made strictly according to merit, i.e., on the basis of the marks secured in the qualifying examination,
a) from among the candidates belonging to any particular category in whose favour the Management has chosen to earmark ccrlain number of seats, if the management had done so, and
(b) among rest of the applicants or all the applicants, as the case may be.
(IV) After the selection is made the list of selected candidates shall be notified on the Notice Board of the college concerned, s'pecifying the percentage of marks secured by each of the candidate selected.
(V) The directions issued by the Government as directed by this order shall continue until the rules are framed and come into force."
13. Pursuant to the aforesaid direction issued by this Court on 18-4-1991, the State Government issued two orders dated 7th May 1991 and 25-5-1991. The first one related to admission to private Engineering Colleges, the second one related to admission to 1st M.B.B.S. in Private Medical Colleges. As the validity of these orders is challenged in these Writ Petitions, it is necessary to reproduce the same. However, as both the orders are similarly worded, it would be sufficient if one of them is reproduced. Thus, the Government order bearing No. ED 19 TEC 91. Bangalore, dated 7-5-1991, is reproduced and it is as follows:
"Proceedings of The Government of Karnataka Sub :-- Selection of candidates to various courses offered by Private Engineering Colleges in the Slate -- Issue of Guidelines Regarding.
Ref:-- Letter No. 9AGP/91-92 dated 19/20 April 1991 from the High Court Government Pleader.
Preamble:--
The question of framing rules under S. 14 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 has been under examination of Government. In Writ Petition No, 16601/90 on the file of the High Court of Karnataka, filed by Smt. Tejaswini Patil v. Bangalore University and others, the High Court of Karnataka in its order dated 18th April, 1991 has directed the Government in Education Department and the Health and Family Welfare Department to issue directions to each of the Private College falling within the purview of the Act stipulating the guidelines to be followed by the College in the matter of selection of candidates to various courses offered by them, pending framing of rules under the said Act. The matter has been examined and the following orders are issued :
Govt. Order No. ED 19TEC 91, Bangalore, dated the 7th May 1991.
Pending framing of rules under S. 14 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984, Government are pleased to issue the following guidelines in the matter of selection of candidates in Private Engineering Colleges in the State :
1) Every College shall invite applications for admission, fixing the last date for receipt of the application.
2) The selection for admission shall be made only after the last date fixed for receipt of the application is over and on consideration of comparative merit of all the applicants together.
3) The selection shall be made strictly according to merit, that is on the basis of the marks secured in the qualifying examination :
a) from among the candidates belonging to any particular category in whose favour the Management has chosen to earmark certain number of seats, if the management had done so, and
b) Among rest of the. applicants or all the applicants as the case may be.
4) After the selection is made, the list of selected candidates shall be notified on the Notice Board of the College concerned, specifying the percentage of marks secured by each of the candidate selected.
All the private Engineering Colleges in the State shall scrupulously follow the above guidelines. These guidelines shall continue to be in force with immediate effect till rules under S. 14 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 are framed and issued. The Director of Technical Education shall bring the above guidelines to the notice of all concerned.
By Order and in the name of the Governor of Karnataka Sd/-
(M. S. Swamy) Under Secretary to Government (I/c) Education Department.
To The Compiler, Karnataka Gazette, Bangalore for Publication in the next issue of the Gazette.
Copy to:
1. The Director of Technical Education, Bangalore.
14. Aggrieved by the aforesaid orders, these Writ Petitions in question have been preferred. As already pointed out some of the petitioners have also challenged the validity of the several provisions contained in the Act. It is already pointed out as to how these petitions came to be referred to this Full Bench Special Bench.
15. The main decision in Tejaswini Patil's case was also challenged before the Supreme Court. The petition for Special Leave to Appeal (Civil No. 8140/91) was preferred by some of the Managements of the Private Educational Institutions. The Supreme Court by the order dt. 10th May, 1991, passed the following order:
"The applications for permission to file Special Leave Petition arc allowed. The decision of the High Court that capitation is not collectable is no more under challenge. Issue notice confined to the question as to whether by statute, the right of the founder of the institution to the residue left-over after the Government quota is taken over, can be controlled or not is to be examined. Issue notice on the stay petition. List the Special Leave Petition on 23-5-1991."
16. Karnataka Medical Colleges Association, Bangalore also had preferred Civil Appeals Nos. 2557 to 2560/91. There were also four more civil appeals bearing Nos. 2561 to 2564 of 1991 against the main decision in Tejaswini Patil's case.
In addition to this, Bapuji Educational Association, The B.M.S. Educational Trust, and others, had also preferred S.L.P. Nos. 11523 to 11525 and 11004 to 11010 of 1991 against the directions issued on 18-4-1991 in the aforesaid Tejaswini Patil's case. These S.L.Ps. were disposed of by the Supreme Court by the following order passed on 22-7-1991.
"I.A. No. 1 IN & SLP /-91 (CC 13548/ 91) Bapuji Educational Assn. v. The State of Karnataka.
List this matter along with C.A. Nos. 2559-60/91 which according to the learned counsel for the petitioners are against the same judgment.
S.L.P. Nos. 11523-25/91, LA. No. 1 IN & SLP (C) /91 and SLP (C) Nos. 1100410/91.
Heard learned counsel for the petitioners. We do not find any justification to entertain the special leave petitions against an inter-locutory order when the main matter is still pending before the High Court. The special leave petitions are dismissed without going into the merit of the points raised. It would be open to the petitioners to make a suitable request in the High Court for expeditious disposal of the main matter in view of the fact that these matters relate to large number of students on account of which an early decision would he desirable. We have no doubt that the High Court would make suitable orders for this purpose if such a request is made by the petitioners."
Civil Appeals 2557 to 2564 of 1991 were also disposed of on 31-7-1991 by the following order:
"Mr. Harish M. Salve, counsel points out that the points which are agitated before this Court in these cases are now engaging the attention of the Full Bench of the High Court before which these matters are coming for hearing. In order to avoid any embarrassment to the Full Bench of the High Court on account of the fact that similar matters are pending in this Court against the decision of the Division Bench, we have permitted Mr. Salve to withdraw these petitions with liberty to approach this court after the Full Bench decision if necessity arises. All contentions are open to the parties subject to directions and orders which the Full Bench makes.
Civil Appeals are disposed of accordingly".
The result is that the validity of the decisions rendered in Bapuji Education Association's case, Tejaswini Patil's case and also the directions issued on 18-4-1991 in Tejaswini Patils case is left open for challenge as none of the said decisions can he said to have assumed finality.
17. Though in most of these petitions, the validity of several provisions of the Act and in some of the pet it ions, the validity of the entire Act has been challenged, but at the time of arguments, it was submitted that the contentions as to validity of several provisions of the Act and also the emtire Act as such nun be left open and the petitions may he decided as to validity of the Government Orders dated 7-5- 1991 and 25-5-1991 and also the validity of the directions issued on 18-4-1991 in Tejaswini Patil's case and the decisions in Bapuji Educational Association's case and Tejaswim Patil's case in so far they affect the right of management of private education associations to admit the students to various courses conducted by them. In the light of these submissions, it is not necessary to go into the validity of the Act as a whole and validity of some of the provisions of the Act in particular. Accordingly, the contentions raised by the petitioners relating to the validity of the Act as a w hole and some of the provisions of the Act. in particular and the reliefs prayed for in that regard are left open. The liberty is reserved to the petitioners to challenge the validity of some of the provisions of the Act in particular, and the Act as a whole. In view of this, it is not necessary to refer to the several pleas raised in the petitions concerning the aforesaid reliefs. Accordingly, these petitions are considered only i so far they relate to the validity of the Government Orders dated 7-5-1991 and 25-5-1991 and the directions dated 18-4-1991 issued in Tejaswini Patil's case and the decisions in Bapuji Fducational Association's case and Tejaswini Patil's case in so far they affect the light of the management of private educational institutions to admit students to various courses conducted by them.
The pleadings raised by the parties in respect of the aforesaid reliefs will be referred to at the relevant stages. Therefore, it is necessary to summarise the pleadings separately.
18. It is also necessary to mention here that Miss Tejaswini Palil and Mr. Santhosh Kumar, who were the petitioners in Miss Tejaswini Patil's case, have got themselves impleadcd as additional respondents in Writ Petition No. 13216 91 and they are represented through a Counsel Sri. Kashinatha Rao Patil. It was also submitted on their behalf that they would argue the case on the basis of the records before Court and they would not seek any time to file statement of objections. This submission has been recorded in our order dated 28-10-1991. The respondents In those Writ Petitions are present in these petitions in one form or the other. In addition to this one Dr. M. R. Thanga. M.L.C., and also the Professor of Surgery. M.R. Medical College. Gulbarga, sought permission to intervene. By our order dated 29-10-1991, he was also permitted to intervene.
19. Heard the Learned Counsel appearing on both sides.
20. In the light of the contentions urged on both the side, the following points arise for consideration.
1. Whether this Full Bench Special Bench is lawfully seized of these writ petitions and is competent to decide the same?
2. Whether the directions issued on 18-4-1991 in Tejaswini Patil and Santhosh Kumar's ease on an application filed by the petitioners are valid and whether the Court has acted well within its jurisdiction in issuing the same?
3. Whether the Government Orders dt. 7-5-1991 hearing No. ED.19 TEC. 91 and dt. 25-5-1991 hearing No. MED.166 HFW.91 and the communication dt. 16-5-1991 bearing No. DTE.9 AC.1 91 issued by the Director of Technical Education pursuant to the Government Order dated 7-5-1991, are valid in law.
4. Whether the decisions of a Division Bench of the Court in Tejaswini Patil v. Bangalore University and Santhosh Kumar v. M.R. Medical College and othersdatcd 16-1-1991, and also the Bapuji Educational Association's case, lay down the law correctly in so far the said decisions relate to admission of students by the management of private education institutions to the various courses conducted by them and also whether they are binding on the private education institutions, which were not parties to the same?
5. What order?
21. Point No. 1: It was contended by the learned Advocate General and also by the learned counsel appearing on behalf of other respondents that as per S. 7 of the Karnataka High Court Act, 1961. (for short called the 'High Court Act'), the Division Bench could not have referred the entire case and it could have referred only the question/s of law or usage having the force of law arising in these petitions; that the constitution of this Full Bench by the Hon'ble the then Chief Justice was only pursuant to the order of reference made by the Division Bench, that such reference itself was bad in law, as such this Full Bench had not lawfully seized of these Writ Petitions and as such it was not competent to decide the same. On the contrary, it was contended by the Learned Counsel appearing on behalf of the Petitioners that a Division Bench was competent to refer the entire case to a Full Bench. Reliance was placed on the provisions contained in S. 7 of High Court Ac! and Rules 6 and 7 of the Karnataka High Court Rules, 1959 and the definition of the expressions "Bench" and "Full Bench" contained therein. It was also contended that at a in rate, the Hon'ble the Chief Justice, had inherent power to constitute Benches consisting of one two three or more than three Judges, that the matter was no more res integra, as it had been decided by the Supreme Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar and also by a Full Bench of this Court in Easa Munawar v. The State Bank of India 1966 (1) Mys LJ 413.
It is no doubt true that S. 7 of the High Court Act enables a Division Bench consisting of two Judges to refer any question of law or usage having the force of law arising in a proceeding pending before it, or if it differs from the view taken by a similar Bench of the High Court on the said question may refer to a Full Bench of the High Court, the question of law or usage having the force of law.
It is relevant to remember that the High Court Act is intended to make provision for regulating the business and exercise of powers of Ihe High Court of the State of Karnataka in relation to administration of justice and to provide for its jurisdiction. This is clear from the preamble to the Act. While considering similar enactment, the Supreme Court in Raja Soap Factory v. Shantaraj : held that the enactment was purely a regulatory one enacted for regulating the business and exercise of, the powers of the High Court in relation to the administration of Justice and it did not purport to confer upon the High Court any jurisdiction, original or appellate. The provisions contained in the High Court Act, except S. 4 thereof, deal with the regulation of administration of justice and exercise of powers by a single Judge or Division Bench or Full Bench and other matters relating to administration of justice. Section 4 also does not create or confer any new jurisdiction. It only provides how a jurisdiction conferred upon the High Court under Arts. 2260 and 227 of the Constitution and the original jurisdiction of the High Court under any law for the time being in force shall have to be exercised. Thus the High Court Act is only regulatory. The provisions contained in S. 7 of the Act are to be viewed in the background that the High Court Act is regulatory. No doubt, S. 7 enables a Bench consisting of not less than two Judges of the High Court to refer any question of law or usage having the force of Maw arising in the case before it, to a Full Bench of the High Court. It is only an enabling provision, enabling the Bench con-sisting of not less than two Judges even to refer the question of law or usage having the force of law arising in a case before it to a Full Bench of the High Court. It does not either prohibit or take away the jurisdiction of a Bench consisting of not less than two Judges of the High Court to refer the entire case to a Full Bench of the High Court. Section 19(iv) of the High Court Act came up for consideration before a Full Bench of this Court in Easa Munawar v. The State Bank of India 1966(1) MLJ 413. In Easa Munawar's case, the following questions were referred to the Full Bench:
"(1) When two Judges constituting a Division Bench, who hear a petition filed under Arts. 226 and 227 of the Constitution at the stage of admission differ, one dismisses the petition and the other admits the same, in the absence of any provision in the Mysore High Court Act, or the Rules thereunder what should be the procedure that the High Court should adopt for the disposal of the said petition? And (2) has the Hon'ble the Chief Justice no power to refer the matter in the above said circumstances to a larger or a Full Bench for disposal in the absence of any rule to that effect in the Mysore High Court Act?"
While considering the scope of S. 10(iv) of the High Court, the view expressed by the majority was as follows:
"From what has been stated above, it is clear that to facilitate the exercise of the jurisdiction vested in the High Court by the Constitution, the Chief Justice had inherent power to refer the writ petition which remained undisposed of by the Bench consisting of Govinda Bhat and Gopivallabha lyengar, JJ. to another Division Bench of two judges or to a larger Bench for disposal. It has been suggested that having regard to the language in the opening part of S. 10 of the Act, the powers of the High Court can be exercised only by a Bench of two Judges and not by a larger Bench, in respect of matters enumerated in Clause (iv). It is true that S. 10 states that the powers of the High Court in relation to the matters enumerated thereunder "shall be exercised by a Bench of two Judges". Confining the discussion to Clause (iv) of that section, it is seen that clause pertains to the exercise of the jurisdiction vested under Arts. 227, 227 and 228 of the Constitution. Bearing in mind that the Act is purely regulatory and therefore intended to facilitate the exercise of the constitutionally vested jurisdiction, it would be proper to understand the true meaning of the words "shall be exercised by a Bench of two Judges", in relation to this clause, as merely requiring that the powers should be exercised by a Bench of not less than two Judges and as not prohibiting the exercise of those powers by a larger Bench whenever found necessary in a situation not covered by the Act."
The Full Bench also further held following the decision of the Supreme Court in Pramathanath v. Saroj Ranjan, thus:
"..... Further discussion on this point may not be necessary in view of what has been clearly stated by the Supreme Court in Pramathanath v. Saroj Ranjan, That was an appeal from the decision of the Calcutta High Court in two Revision Petitions filed against the order of the Chief Presidency Magistrate. The revision petitions were heard by a Bench of two Judges; one of the Judges came to the conclusion that the petition should be referred to a larger Bench to be constituted by the Chief Justice while the other Judge was inclined to dismiss the petitions; but both finally agreed that the petitions should be referred to a larger Bench. The Chief Justice accordingly constituted a Special Bench of three Judges. The Special Bench heard the two petitions and dismissed them. One of the questions raiseed was whether the Chief Justice had jurisdiction to constitute a Special Bench when the Rules of practice framed by the High Court did not contain a provision for the constitution of a Special Bench. The proviso to Rule 1 in Chap. II of the Rules of the Calcutta High Court (Appellate Side) laid down that on the requisition of any Division Bench or whenever he thinks fit, the Chief Justice may appoint a Special Bench to consist of three or more Judges for the hearing of any particular appeal or any particular question of law arising in an appeal or any other matter. Rule 9 of the same Chapter which dealt with the criminal matters contained no proviso similar to that in the said Rule I and it was therefore, contended that in the absence of such a proviso it was not open to the Division Bench to refer the case back to the Chief Justice for constituting a larger Bench. In dealing with this argument, S. K. Das, J. with whom the othert learned Judges of the Bench agreed on this point, observed that the Chief Justice had inherent power to constitute a larger Bench in special circumstances and stated as follows:--
"I am also in agreement with the view expressed by the Special Bench that the absence of a proviso to R. 9 in Chap. II corresponding to the proviso to R. 1 does not take away the inherent power of the Chief Justice to refer any matter to a Bench of three Judges. Sub-rule (1) of R. 9 itself provided that a Division Bench for the hearing of cases on appeal, reference or revision in respect of the sentence or order of any Criminal Courl shall consist of two or more Judges. Therefore it was open to the Chief Justice to constitute a Bench of three Judges for the hearing of the case and in my view it made no difference whether he constituted such a Bench originally or on a reference back by the Division Bench. I further think that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances....."
It would be clear from this judgment of the Supreme Court that the Chief Justice has inherent power in the matter of constitution of Benches. This principle can as well be applied to the disposal of writ petitions, particularly in a situation not met by the provisions of the Act or the Rules".
Accordingly, the questions referred to the Full Bench were answered as follows:--
"When two Judges constituting a Division Bench who hear a petition filed under Art. 227 and Art. 227 of the Constitution at the stage of admission differ, one dismisses the petition and the other admits the same, the petition remains undisposed of by the High Court and should, therefore, be placed before the Chief Justice who has the inherent power to refer the case for disposal (by admitting or rejecting), to another Division Bench or a larger Bench as the circumstances of the case may require."
Pramathanath's case involved more or less the similar circumstances under which the cases on hand came to be referred to this Bench. In that case, it was held by the Supreme Court thus:
".....Even if Rr. 1 and 5 in Chapter VII may not strictly speaking, apply to the present case because the Division Bench consisting of Mukherjee and Bose, JJ. did not formulate the point or points on which they differed from the earlier Division Bench decisions referred to by Mukherjee, J. I think that the principle of those rules would apply and it was open to the Chief Justice, on a reference by the Division Bench, to constitute a larger Bench to consider the case. I am also in agreement with the view expressed by the Special Bench that the absence of a proviso to R. 9 in Chapter II corresponding to the proviso to R.1 does not take away the inherent power of the Chief Justice to refer any matter to a Bench of three judges. Sub-rule (1) of R. 9 itself provided that a Division Bench for the hearing of cases on appeal, reference, or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges. Therefore, it was open to the Chief Justice to constitute a Bench of three Judges for the hearing of the case and in my view it made no difference whether he constituted such a Bench originally or on a reference back by the Division Bench. 1 further think that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances. Take, for instance, a case where one Judge of the Division Bench feels, for a sufficient and good reason, that he should not hear the case. It is obvious that in such a case the matter must be referred back to the Chief Justice for the constitution of another Bench. The Chief Justice, I think, must possess such an inherent power in the matter of constitution of Benches and in the exercise thereof he can surely constitute a larger Bench in a case of importance where the Division Bench hearing it considers that a question of the correct ness or otherwise of earlier Division Bench decisions of the same Court will fall for consideration in the case. Section 429 of the Code of Criminal Procedure does not apply to such a case because it is not a case where the Judges composing the Court are equally divided in opinion. Rather it is a case where the Judges composing the Division Bench consider that the case is one of such importance that it should be heard by a larger Bench".
Chap. III of the High Court of Karnataka Rules, 1959 (for short called 'High Court Rules), relates to constitution of Benchs. It consists of 3 rules, namely. Rules 5, 6 & 7. Rules 6 & 7 are as follows:
"6. Benches shall be constituted and judicial work of the Court allotted or distributed to them by or in accordance with the directions of the Chief Justice.
7. When a single Judge refers a case to a Bench or when a Bench of two Judges refers any question to a Full Bench, then the papers of the particular case shall be placed before the Chief Justice for a reference to a Bench or for the constitution of a Full Bench".
Expression "Bench" as defined in R. 1(0 means a Bench of Judges and shall include single Judge in relation to matters which can be disposed of by a single Judge : Expression "Full Bench" is also defined in Cl. (g) of R. 1. According to this definition, "Full Bench" means a Bench consisting of three or more Judges. Sub-sec. (4) of S. 2 of the High Court Act defines the expression "Full Bench" as meaning a Bench consisting of not less than three Judges of the High Court. Therefore, a Full Bench shall consist of minimum of three Judges of the High Court. It may even consist of more than three Judges as the situation demands. Thus, Rule 6 of the High Court Rules read with the definition of the Expressions "Bench", "Full Bench" as defined. there is a power vested in the Chief Justice of the High Court to constitute Benches consisting of a single Judge, two Judges, or three or more Judges. The Supreme Court, as pointed above, has also ruled that there is an inherent power in the Chief Justice of the High Court to constitute a Special Bench or constitute larger Benches in the special circumstances. The order of reference as reproduced in para 5 above, also states that the correctness of the judgment rendered by the Division Bench in Tejaswini Patil's case and the subsequent directions issued on 18-4-1991 are required to be considered. Therefore, it is necessary to refer the matters to a Full Bench. Thus the order gives a reason as to why it has become necessary to refer these matters to a Full Bench. It has been already pointed out that S. 7 of the High Court Act does not prohibit referring of entire case to a Full Bench. In addition to this, it is the prerogative of the Chief Justice to constitute Benches consisting of single, two, three or more than three Judges as the the situation demands and to assign work. There is also an order passed by the Hon'ble the then Chief Justice in exercise of his powers as Chief Justice constituting this Bench which can very well be called as Special Bench to hear and decide these petitions. Therefore, looked from any point of view, it is not possible to hold that the orders referring these petitions to a Full Bench suffer from any infirmity, so as to render Constitution of this Special Bench as invalid.
22. Sri Kashinath Rao Patil, learned Counsel for Miss Tejaswini Patil and Santhosh Kumar, placed reliance on a Full Bench decision of this Court in Shivadeviamma v. Sumanaji, AIR 1973 Mys 87. In that case, the majority view was that since the order of reference did not expressly state that it differed from the view taken in Amba Shedthi's case (1969) 2 Mys LJ 377, which was binding on the co-ordinate Bench and in the absence of conflict of authority, reference casting a doubt on the correctness of the reported decision of a Division Bench in Amba Shedthi's case and without formulating the reasoned criticism of the view expressed therein or offering an alternative to it was not valid.
It may be pointed out that a Full Bench decision in Easa Munawar's case and also the decision of the Supreme Court in Pramath Nath's case were not brought to the notice of their Lorships. Further in the said decision, the question raised herein did not arise for consideration. Thus no sustenance can be drawn by the respondents from the aforesaid decision in Shivadeviamma's case. The point No. 1 is accordingly answered in the affirmative.
POINT NOs. 2 TO 4:
23. In the light of the judgment of the Supreme Court in Unni Krishnan J.P. v. State of Andhra Pradesh (W. P. (C) No. 607/1992 and other Writ Petitions dated 4-2-1993), we do not consider it necessary to decide points Nos. 2 to 4. Further, it is also brought to our notice that the State Government has also framed the Rules under subsection (i) of Section 14 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 vide Notification No. ED 33 TA SE VI 92 dated 10-3-1993 publsihed in the Karnataka Gazette Extra-ordinary dated 15-3-1993. The Government Order dated 7-5-1991 (Annexure-A) specifically states that pending framing of the Rules under Section 14, the Government have issued the guidelines in the matter of selection of candidates for admission in Private Engineering Colleges in the State. Consequently, the guidelines contained in Government Order dated 7-5-1991 and the Order bearing No. DTE. 9/ACN 1/91 dated 16-5-1991 issued by the Director of Technical Education, Bangalore, are no more in force and have ceased to operate. For these reasons, it is not necessary to decide Points 2 to 4. Accordingly, we keep open points 2 to 4 and all other contentions raised by the petitioners and the respondents in these writ petitions.
24. We also further make it clear that during the pendency of these writ petitions we had passed an interim order on 16-8-1991. According to that interim order, admission have been made till to-day. We make it clear that the disposal of these writ petitions shall not affect the admissions so far made on the basis of the interim order passed in these writ petitions.
25. With these observations, the Writ Petitions are disposed of.
26. In the facts and circumstances of the case, there will be no order as to costs.
27. Order accordingly.