Kerala High Court
Self Financing Para Medical ... vs The State Of Kerala on 25 June, 2013
Author: K.M.Joseph
Bench: K.M.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936
WP(C).No. 19203 of 2013 (A)
----------------------------
PETITIONERS:
--------------------------
1. SELF FINANCING PARA MEDICAL MANAGEMENTS ASSOCIATION,
WESTFORT HOSPITAL BUILDING, THRISSUR-4,
REPRESENTED BY ITS SECRETARY, MR.M.NAJEEB.
2. M.E.S INSTITUTE OF PARA-MEDICAL SCIENCES,
M.E.S MEDICAL COLLEGE CAMPUS, MALAPARAMBA,
PERINTHALMANNA-679 338,
REPRESENTED BY ITS ADMINISTRATOR, MR.M.NAJEEB.
3. MOTHER COLLEGE OF PARA-MEDICAL SCIENCES,
OLARI.P.O., THRISSUR-12,
REPRESENTED BY ITS ADMINISTRATOR,
MR.ABDUL AFSARSHAH.
BY ADVS.SRI.BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SRI.K.A.NOUSHAD
SRI.KANDAMPULLY RAHUL
SRI.MITHUN BABY JOHN
SRI.J.RAMKUMAR
RESPONDENT:
----------------------------
THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE (K),
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-1.
BY GOVERNMENT PLEADER SRI.ROSHAN D.ALEXANDER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 07/07/2014 ALONG WITH WPC.NO. 20438/2013, THE COURT
ON 24/07/2014 DELIVERED THE FOLLOWING:
Kss
WP(C).No. 19203 of 2013 (A)
-------------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:
----------------------------------------
EXT.P1- A TRUE COPY OF THE REPORT SUBMITTED BY THE EXPERT
COMMITTEE TO THE GOVERNMENT.
EXT.P2- A TRUE COPY OF THE REPRESENTATION DATED 25.06.2013, SUBMITTED
BY THE IST PETITIONER TO THE HON'BLE CHIEF MINISTER OF KERALA.
EXT.P3- A TRUE COPY OF THE ACKNOWLEDGEMENT DATED 29.06.2013 ISSUED
FROM THE OFFICE OF THE HON'BLE CHIEF MINISTER.
EXT.P4- A TRUE COPY OF THE G.O.(RT.)NO.2636/2013/H&FWD DATED 20.07.2013
ISSUED BY THE RESPONDENT.
EXT.P5- A TRUE COPY OF THE JUDGMENT DATED 5.3.2007 IN THE WRIT
PETITION NO.27538/2005.
EXT.P6- A TRUE COPY OF THE RELEVANT PORTIONS OF THE PROSPECTUS
PUBLISHED BY THE DIRECTORATE OF MEDICAL EDUCATION.
EXT.P7:A TRUE COPY OF THE CERTIFICATE DATED 17/08/2007 DECLARING MES
MEDICAL COLLEGE AS A MINORITY INSTITUTION.
EXT.P8: A TRUE COPY OF THE CONSENSUAL AGREEMENT DATED 23/08/2012
EXECUTED BETWEEN THE 1ST PETITIONER AND THE GOVERNMENT IN
RESPECT OF DIPLOMA COURSES FOR THE ACADEMIC YEAR 2012-2013.
EXT.P9: A TRUE COPY OF THE CONSENSUAL AGREEMENT DATEAD 23/08/2012
EXECUTED BETWEEN THE 1ST PETITIONER AND THE GOVERNMENT IN
RESPECT OF B.SC M.L.T.COURSE FOR THE ACADEMIC YEAR 2012-2013.
EXT.P10: A TRUE COPY OF THE GOVERNMENT ORDER DATED 05/07/2008.
EXT.P11: A TRUE COPY OF THE AGREEMENT DATED 12/07/2011 EXECUTED BY
THE 2ND PETITIONER FOR THE YEAR 2011-2012.
EXT.P12: A TRUE COPY OF THE G.O.DATED 18/07/2011.
EXT.P13: A TRUE COPY OF THE G.O. DATED 17/08/2011 FOR ALLOTMENT OF
SEATS, IN TERMS OF THE CONSENSUAL AGREEMENTS, BY DIRECTOR OF
MEDICAL EDUCATION FOR B.SC MLT COURSE IN THE 2ND PETITIONER
INSTITUTION.
Kss ..2/-
..2....
WPC.NO.19203/013 (A)
EXT.P14: A TRUE COPY OF THE G.O.DATED 10/11/2011.
EXT.P15: A TRUE COPY OF THE AGREEMENT DATED 31/01/2012 EXECUTED
BETWEEN THE 2ND PETITIONER AND THE GOVERNMENT.
EXT.P16: A TRUE COPY OF THE G.O. DATED 05/03/2012.
EXT.P17: A TRUE COPY OF THE CONSENSUAL AGREEMENT FOR THE YEAR
2009-2010 DFOR B.SC MLT COURSE, EXECUTED BETWEEN THE GOVERNMENT
AND THE KVM INSTITUTE.
EXT.P18: A TRUE COPY OF THE CONSENSUAL AGREEMENT FOR THE YEAR
2011-2012 EXECUTED BETWEEN THE GOVERNMENT AND THE AL - SHIFA
INSTITUTE FOR B.SC MLT.
EXT.P19: A TRUE COPY OF THE CONSENSUAL AGREEMENT FOR THE YEAR
2011-2012 EXECUTED BETWEEN THE GOVERNMENT AND THE WEST FORT
INSTITUTE FOR B.SC MLT COURSE.
EXT.P20: A TRUE COPY OF THE CONSENSUAL AGREEMENT FOR THE YEAR
2010-2011 EXECUTED BETWEEN THE ASSOCIATION AND THE GOVERNMENT
FOR B.SC MLT COURSE.
RESPONDENT(S)' EXHIBITS:
------------------------------------------
EXT.R1(a): TRUE COPY OF THE G.O.(MS) NO.73/2002/H&PWD DATED
21/03/2012.
EXT.R1(b): TRUE COPY OF THE G.O.(RT) NO.1598/2008/H&FWD DATED
30/04/2008.
EXT./R1(c): TRUE COPY OF THE G.O.(MS) NO.542/2011/H&FWD DATED
10/11/2011.
EXT.R1(d): TRUE COPY OF G.O.(MS) NO.430/2011/H&FWD DATED 18/07/2011.
EXT.R1(e): TRUE COPY OF G.O.(MS) NO.84/2012/H&FWD DATED 05/03/2012.
EXT.R1(f): TRUE COPY OF AGREEMENT DATED 31/01/2012.
Kss ..3/-
...3....
WPC.NO.19203/2013 (A)
EXT.R1(g): TRUE COPY OF AFFIDAVIT DATED 31/01/2012.
EXT.R1(h): TRUE COPY OF AGREEMENT DATED 22/03/2012.
EXT.R1(i): TRUE COPY OF AFFIDAVIT DATED 22/03/2012.
EXT.R1(j): TRUE COPY OF BANK GUARANTEE FOR RS.10,00,000/- REMAINING
IN FORCE UPTO 30/09/2015.
EXT.R1(k): TRUE COPY OF A LIST OF COLLEGES FOR CENTRALIZED
ALLOTMENT PROCESS FOR ADMISSION TO PROFESSIONAL COLLEGES IN
NURSING, PHARMACY AND PARAMEDICAL STREAMS 2013.
EXT.R1(l): TRUE COPY OF THE LIST OF INSTITUTIONS CONDUCTING
PARAMEDICAL COURSES.
EXT.R1(m): TRUE COPY OF G.O.(MS) NO.338/2008/H&FWD DATED 05/07/2008.
EXT.R1(n): TRUE COPY OF G.O.(RT) NO.3566/05/H&FWD DATED 09/12/2005.
/TRUE COPY/
P.S.TOJUDGE
Kss
'C.R.'
K.M.JOSEPH
&
A.K.JAYASANKARAN NAMBIAR, JJ.
-------------------------------
W.P.(C).NOS.19203 & 20438 OF 2013
-----------------------------------
Dated this the 24th day of July, 2014
J U D G M E N T
A.K.JAYASANKARAN NAMBIAR, J.
These writ petitions impugn the orders passed by the State
Government fixing the fees that can be collected by self financing
colleges offering degree and diploma courses in the field of
para-medical sciences. As the issues that arise for consideration
are the same in both the writ petitions, they are taken up together
for disposal by this common judgment.
2. The brief facts that are necessary for the disposal of the
writ petitions may be noticed;
The petitioners in W.P.(C).No.19203/2013 comprise of an
Association of Managing bodies of Self Financing para-medical
institutions and two para-medical institutions and the petitioners in
W.P.(C).No.20438/2013 comprise of the Managing bodies of nine
para-medical institutions as well as individual members of such
managing bodies. In both the writ petitions, the grievance voiced
W.P.(C).NOS.19203
& 20438 OF 2013 2
by the petitioners is against the alleged arbitrary fixation, by the
State Government, of the fees that can be collected by the
petitioners from students who are admitted to their institutes for
the pursuit of para-medical courses offered by them. The
petitioners contend that some of the member institutions of the
Association are established and maintained by minority
communities who are entitled for the privilege and protection
under Article 30(1) of the Constitution of India while the other
institutions, being self-financing professional institutions, have a
right under Article 19(1)(g) of the Constitution of India to fix their
own fee structure, subject to the safeguards prescribed by the
Supreme Court in TMA Pai v State of Karnataka - ((2002) 8
SCC 481), Islamic Academy v State of Karnataka - ((2003) 6
SCC 697) and P. A. Inamdar v State of Maharashtra - ((2005)
6 SCC 527).
3. It is pointed out by the petitioners that, pursuant to the
limited powers conceded to the State Government, vide the
judgments of the Supreme Court referred to above, the State
Government had constituted an expert committee comprising, inter
alia, of the Director of Medical Education, the Joint Director of
Medical Education, the Vice-Principal of the Government Medical
W.P.(C).NOS.19203
& 20438 OF 2013 3
College, Calicut and the Director of PIPMS, Thiruvananthapuram,
to go into the issue of fee structure for para-medical courses and
make recommendations to the Government through a formal
report. The expert committee had since gone into the matter and
submitted a report to the Government with their recommendations.
The State Government, however, proceeded to fix the fee structure
for para-medical courses in the State at a level substantially lower
than that recommended by the expert committee in their report.
The petitioners contend that the fee structure recommended by the
expert committee was, in itself, low and hence the action of the
Government, in further reducing the fee structure, rendered the
fixation of fees wholly arbitrary and unreasonable and violative of
the fundamental rights of the petitioners.
4. It must be noticed at this stage that when W.P.(C).
No.19203/2013 came up for admission in August 2013, it was
deemed necessary to make some interim arrangement in the
matter of the fees that could be collected by the petitioner
institutions while admitting students to the para-medical courses
for the academic year 2013-14. Accordingly, vide an interim order
dated 12.08.2013, we directed that, as against the tuition fees of
Rs.27,250 for Government merit seats and Rs.52,000 for
W.P.(C).NOS.19203
& 20438 OF 2013 4
Management seats, stipulated for Degree Courses and Rs.12,000
for Government merit seats and Rs.33,000 for management seats,
stipulated for Diploma Courses in the Government order, the
petitioners could provisionally collect Rs.30,000 and Rs.52,000
respectively for Government merit seats and Management seats for
the Degree Courses and Rs.20,000 and Rs.40,000 respectively for
Government merit seats and Management seats for the Diploma
Courses. This arrangement was to continue pending the final
disposal of the writ petitions. We are given to understand that
admission of students to the para-medical courses, during the last
academic year, was effected on this provisional basis.
5. The State Government filed a counter affidavit in W.P.(C).
No.19203/2013, traversing the averments in the writ petition. In
particular, it was pointed out that the petitioner had not disclosed
certain material facts in the writ petition and hence it was not
entitled to claim any discretionary relief from this Court. The
counter affidavit alludes to the fact that the petitioners had entered
into consensual agreements with the State Government wherein
they had agreed to follow the regulations, instructions or orders
issued by the State Government and the Kerala Para-medical
Council in the matter of admission of students. It is contended that,
W.P.(C).NOS.19203
& 20438 OF 2013 5
by virtue of these agreements, the petitioners had also agreed to
adhere to the fees fixed by the Government from time to time as
also to the conditions prescribed in the prospectus for each year
and hence they could not now challenge the fixation of fees by the
State Government. It is further pointed out that the petitioner
institutions, having commenced their courses pursuant to No-
objection certificates and Letters of Permission given by the State
Government that contained, inter alia, conditions with regard to
fixation of fees by Government, it was not open to them to
challenge the said conditions after having taken the benefit
conferred by the Letters of Permission. The locus standi of an
Association to impugn the Government order fixing fees as also that
of the institutions to allege violation of Article 19(1)(g) of the
Constitution, is questioned in the counter affidavit of the State
Government.
6. It was, apparently, taking into account the objections
pointed out by the State Government in its counter affidavit in the
earlier case, that W.P.(C).No.20438/2013 was filed by arraigning
individual members of the managing bodies of the respective
institutions also as petitioners in the writ petition. The writ petition
was later amended by producing therein all the Government
W.P.(C).NOS.19203
& 20438 OF 2013 6
orders, Letters of Permission and agreements that had a bearing on
the issue of admission of students to the para-medical courses
offered by the said institutions and collection of fees therefor. A
challenge against the Letters of Permission granted by the
Government to the petitioner institutions, to the extent they
contained a stipulation therein enabling the Government to fix the
fees, was also incorporated through the amendment. A similar
amendment was also carried out in respect of W.P.(C).No.19203/
2013.
7. The issues that arise for consideration in these cases are
as follows:
7 To what extent can the State Government regulate
the conduct of para-medical courses in the State
by private self-financing institutions?
7 Can the actions of the self-financing institutions, in
accepting the No-objection certificates and letters
of permission issued to them by the State
Government, and commencing the para-medical
courses pursuant thereto, affect their right to
challenge the conditions in the said documents as
violative of their fundamental rights under Article
19 (1)(g) or Article 30 (1) of the Constitution of
India?
W.P.(C).NOS.19203
& 20438 OF 2013 7
7 Was there any such willful suppression of material
facts, by the petitioners in the instant cases, as
would disentitle them to the benefit of the
discretionary jurisdiction of this Court under
Article 226 of the Constitution of India?
8. We have heard extensive arguments by learned counsel on
these issues. Adv.Sri Babu Karukapadath addressed arguments on
behalf of the petitioners and the learned Senior Government
Pleader Sri.Roshan Alexander did so on behalf of the State
Government. The contentions put forth by the learned counsel for
the petitioners can be summarised as follows:
7 The legal position with regard to the extent of
regulation that could be exercised by the State
Government over the establishment and
administration of self-financing institutions by
private entities was well settled through the
decisions of the Supreme Court in TMA Pai v State
of Karnataka - ((2002) 8 SCC 481), Islamic
Academy v State of Karnataka - ((2003) 6 SCC
697) and P. A. Inamdar v State of Maharashtra
- ((2005) 6 SCC 527).
7 The decisions of the Supreme Court in the aforesaid
cases clearly recognise the right of self-financing
W.P.(C).NOS.19203
& 20438 OF 2013 8
institutions to fix their own fee structure without
involving in profiteering and charging capitation fee
and to evolve their own admission procedure subject
to it satisfying the requirement of being merit based,
fair, transparent and non-exploitative.
7 The right of the petitioners, other than the
institutions and corporate bodies among them, to
administer the self-financing institutions, was an
integral part of their fundamental right under Article
19 (1)(g) of the Constitution. The rights of some of
the petitioners were also traceable to Article 30 (1)
of the Constitution. These rights could not be treated
as waived merely because the petitioners had
accepted the No-objection certificates and Letters of
permission granted by the State Government and
had commenced para-medical courses pursuant
thereto. It was settled law, by virtue of the decisions
of the Supreme Court in [Amalgamated Coalfields
Ltd. and another v. Janapada Sabha Chhinwara
and others (AIR 1964 SC 1013), Olga Tellis and
others v. Bombay Municipal Corporation and
others (AIR 1986 SC 180), Sant Lal Gupta and
Others v. Modern Cooperative Group Housing
Society Limited and Others ((2010)) 13 SCC
336) and Dr.Subramanian Swamy v. State of
Tamil Nadu and Others ((2014) 5 SCC 75)], that
the fundamental rights of a person or citizen cannot
be waived. It followed, therefore, that any condition,
W.P.(C).NOS.19203
& 20438 OF 2013 9
in the said no-objection certificates and letters of
permission granted to the petitioners, that violated
the fundamental right of the petitioners had,
necessarily, to be struck down and rendered
inoperative.
7 Even after the grant of no-objection certificates
and letters of permission to the petitioners, the
State Government was not fixing any fee structure
in respect of the para-medical courses conducted
by the petitioner institutions except through
separate consensual agreements that were
entered into in respect of each academic year.
This conduct of the State Government clearly
indicated that they had waived their right to insist
on a fixation of fee structure for the self-financing
institutions and had chosen, instead, to enter into
agreements with the institutions for the said
purpose and for the purpose of seat sharing.
7 The challenge in the writ petitions against the
fixation of fees by the State Government was
necessitated in the wake of the rejection, by the
State Government, of the recommendations of the
expert committee that was constituted by it for the
very purpose of determining the fee that could be
charged by self-financing institutions conducting
para-medical courses in the State. As against the
recommendations of the expert committee, the
W.P.(C).NOS.19203
& 20438 OF 2013 10
State Government could not, by itself and by
disregarding the said recommendations, fix a fee
structure that was not based on any material and
hence both arbitrary and unreasonable. It is
pointed out that the institutions cannot function
with the fee structure that is now thrust upon
them.
7 On the issue of suppression of material facts, he
would contend that the challenge in the writ
petitions was against the very fixation of fees, in
respect of self-financing institutions, by the State
Government. What was questioned therein was
the legality of the power exercised by the State
Government. In this view of the matter, it was not
necessary for the petitioners to rely on, or bring
on record, the documents such as the no-objection
certificates, letters of permission or the
agreements entered into with the State
Government which contained clauses inserted
through exercise of that power. At any rate, the
said documents were produced through an
amendment of the writ petitions and well before
the hearing of the matter and hence there was no
prejudice caused to the State Government as a
party in the litigation. It is also pointed out that,
insofar as there was no consensual agreement,
between the petitioners and the State
Government, for fixation of fees for the academic
W.P.(C).NOS.19203
& 20438 OF 2013 11
year 2013-14, the relevant clauses in the letters of
permission granted to the petitioner institutions
had not been given effect to in the said academic
year. The non-production of the no-objection
certificates and letters of permission or the
absence of a challenge against the same, could
not, therefore, have been fatal to the case of the
petitioners. These factors would not deprive the
petitioners of the benefit of the discretionary
jurisdiction of this Court under Article 226 of the
Constitution, more so when the petitioners have
approached this Court alleging violation of their
fundamental rights. It is also pointed out that, at
any rate, there was no "law" on the basis of which
the State Government was acting while imposing
the unreasonable conditions on the petitioner and
that executive orders cannot be treated as "law"
for the purposes of restricting the fundamental
rights of the petitioners under Article 19 of the
Constitution.
9. Per Contra, the submissions of the learned Senior
Government Pleader, briefly put, are as follows;
7 The decisions of the Supreme Court in the case
of TMA Pai Foundation, Islamic Academy
and P.A.Inamdar, (Supra), while recognizing
the right of private entities to administer self-
W.P.(C).NOS.19203
& 20438 OF 2013 12
financing institutions, made it abundantly clear
that it was well within the powers of the State
Government to regulate the activities of the
said institutions with a view to ensuring the
maintenance of high standards in the field of
education as also to ensure that admissions to
the said institutions complied with the
requirements of merit, transparency, fairness
and the fees charged was non-exploitative.
7 It was in exercise of the said power of
regulation that the State Government had, in
the absence of any central regulations
governing the field, formulated a scheme laying
out the requirements and pre-conditions for
commencing para-medical courses in the State.
The said scheme envisaged, inter alia, the
setting up of a para-medical council, the
requirement of obtaining a Letter of Intent/No-
objection certificate from the State Government
and thereafter, a Letter of Permission to
commence the course. The letters of permission
granted to the petitioner institutions, contained
clauses therein that were designed to ensure
that there would be a sharing, between the
State Government and the institution, of the
seats allotted to the institution for the course in
question and further, that the fees collected
from students pursuing the said courses were
W.P.(C).NOS.19203
& 20438 OF 2013 13
not exploitative in nature. The said letters of
permission constituted the basis for the
commencement of courses by the petitioner
institutions.
7 Insofar as the petitioner institutions had,
willingly and with full knowledge of the
consequences ensuing therefrom, applied for
and obtained the letters of permission from the
State Government and even entered into seat
sharing agreements with the said Government,
they could not now turn around and contend
that the State Government had no power to
stipulate the fee structure in accordance with
the condition in the letters of permission. The
State Government was acting well within its
powers while insisting on a fee structure that
was non-exploitative in nature, as a condition
for the grant of letters of permission.
7 The contention of the petitioners that the State
Government had waived its right to fix the fee
structure by not entering into consensual
agreements with them is vehemently denied. It
is pointed out that the petitioners cannot, by
refusing to enter into consensual agreements
with the State Government, defeat the
requirement of charging only reasonable and
non-exploitative fees that is a condition in the
W.P.(C).NOS.19203
& 20438 OF 2013 14
letters of permission granted to them. Further,
by insisting on such a condition, the State
Government has not violated any of the
fundamental rights of the petitioners.
7 Insofar as the petitioners had voluntarily
applied for and obtained letters of permission
from the State Government and agreed to abide
by its terms, their remedy against an erroneous
fixation of fee structure lay in arbitration
proceedings that were provided for in the
agreements entered into with the State
Government. Further, since the fundamental
rights of the petitioners were subject to the
reasonable restrictions that were imposed by
the State Government through the regulatory
regime formulated by the State Government, it
was incumbent upon the petitioners to have
produced the no-objection certificates and
letters of permission as well as the agreements
entered into with the Government, which
conditioned their rights, while approaching this
Court under Article 226 of the Constitution.
Their inaction spells in the realm of suppression
of material facts thereby disentitling them from
seeking any discretionary relief. Reliance is
placed on the decision in K.D.Sharma v. Steel
Authority of India Limited and Others
((2008) 12 SCC 481).
W.P.(C).NOS.19203
& 20438 OF 2013 15
7 Reliance is also placed by the Government on
the decision of this Court in Pournamy Mohan
v. State of Kerala (2012 (1) KLT 686 to
contend that an Association cannot maintain a
writ petition.
10. We have considered the submissions made by Counsel
for the parties. Firstly, we must turn to the contention of the State
Government as regards suppression of material facts by the
petitioners. It is the specific contention of the learned Government
Pleader that, insofar as the petitioners were complaining of State
action being violative of their fundamental rights, it was incumbent
upon them to have brought on record the entire material that
would show the basis of their relationship with the Government in
the matter of administration of their institutions and the conduct of
para-medical courses therein. In Ext.R1 (m) Government Order,
the Government have examined and are pleased to issue Letter of
Intent/No Objection Certificate to the institutions specified in the
Annexure attached therein, which is inter alia stated as follows:
2. The institutions shall agree to the condition that
in the case of Diploma courses 50% seat will be
filled up from merit list to be prepared by the
Director of Medical Education and for Diploma in
Health Inspector course 50% seats will be filled up
from the merit list to be prepared by the Director of
Health Services and fee to those seats will be on
W.P.(C).NOS.19203
& 20438 OF 2013 16
the rates fixed by Government from time to time.
In the instant cases, although the petitioners were actually
aggrieved by the restrictions imposed by the State Government on
their fundamental rights under Article 19 (1) (g) or Article 30, as
the case may be, the said restrictions were contained in the no-
objection certificates and letters of permission issued to them, none
of which were produced at the time of filing the writ petitions. The
said documents were produced only subsequently, after the State
Government alerted the Court of these facts through its counter
affidavit. It is the specific contention of the learned Government
pleader that the conduct of the petitioners effectively disentitled
them to the benefit of the discretionary jurisdiction of this Court.
In this regard he drew our attention to the decision of the Apex
Court in K.D.Sharma v. Steel Authority of India Limited and
Others ((2008) 12 SCC 481, where the court inter alia held as
follows:
"A prerogative remedy is not a matter of course.
While exercising extraordinary power a writ court
would certainly bear in mind the conduct of the party
who invokes the jurisdiction of hte court. If the
applicant makes a false statement or suppresses any
material fact or attempts to mislead the court, hte
court may dismiss the action on that ground alone and
may refuse to enter into the merits of the case by
stating, "We will not listen to your application because
of what you have done." The rule has been evolved in
W.P.(C).NOS.19203
& 20438 OF 2013 17
the larger public interest to deter unscrupulous
litigants from abusing the process of court by
deceiving it. He must disclose all material facts
without any reservation even if they are against him.
He cannot be allowed to play "hide and seek" or to
"pick and choose" the facts he likes to disclose and to
suppress (keep back) or not to disclose (conceal) other
facts. The very basis of the writ jurisdiciton rests in
the disclosure of true and complete (correct) facts. If
material facts are suppressed or distorted, the very
functioning of the writ courts and exercise would
become impossible. If the applicant does not disclose
all the material facts fairly and truly but states ehem
in a distorted manner and misleads the court, the
court has inherent power in order to protect itself and
to prevent an abuse of its process to discharge the
rule nisi and refuse to proceed further with the
examination of the case on merits. If the court does
not reject the petition on that ground, the court would
be failing in its duty. In fact, such an applicant
requires to be dealt with for contempt of court for
abusing the process of the court."
Also in Bhaskar Laxman Jadhav and Others v. Karamveer
Kakasaheb Wagh ((2013) 11 SCC 531), the court inter alia held
as follows:
"It is not for a litigant to decide what fact is material
for adjudicating a case and what is not material. It
is the obligation of a litigant to disclose all the facts
of a case and leave the decision making to the court.
It is not for the court to look into every word of the
pleadings, documents and annexures to fish out a
fact. It is for the litigant to come up-front and clean
with all material facts and then, on the basis of the
submissions made by the learned counsel, leave it to
the court to determine whether or not a particular
fact is relevant for arriving at a decision."
The contention of the petitioners on the other hand is as follows:
In W.P.(C).No.19203/2013, he points out the following
W.P.(C).NOS.19203
& 20438 OF 2013 18
pleadings:
"However, in the decisions mentioned above, the
Hon'ble Supreme Court has made it clear that the
institutions are entitled to enter into consensual
agreements with the Government in the matter of
sharing of seats and fixation of fee structure.
Accordingly, in the previous years, the 1st petitioner,
under certain compelling circumstances, were
constrained to enter into agreement with the
government in the matter of sharing of seats and the
fixation of fee structure with respect to its member
institutions. The fees accordingly fixed were not at
all reasonable and were low compared to the
expenditure incurred by the institutions. It is
submitted that, under such compelling
circumstances, the institutions were running the
courses on loss, even affecting the capital of the
institutions. It is submitted that, while accordingly
fixing the fee structure last year, it was agreed by
the government that, the government would appoint
an expert committee for analyzing the expenditures
for various courses and for recommending the fee
structure for para - medical courses in Self
Financing Colleges."
We also notice the following averments in the reply affidavit:
"The petitioners or any of the members of the 1st
petitioner have never agreed, by way of a consensual
agreement or otherwise to abide by the rigid fee
structure fixed by the Government for ever. There is
no agreement between the petitioners or the
members of the 1st petitioner to abide by the fee
structure fixed by the government. It is submitted
that, there cannot be any such agreement as that
would go against the fundamental rights and other
rights of the petitioners and other members of the 1st
petitioner. Even if there is any such condition, it
cannot stand the scrutiny of law as there cannot be
any waiver of fundamental right guaranteed by the
Constitution of India. The government has no
authority to fix a fee structure affecting, the right,
authority and power of the managements of the
institutions in the matter of administration of the
institutions, including the fixation of fee structure.
Any such condition imposed in any manner is totally
W.P.(C).NOS.19203
& 20438 OF 2013 19
illegal and none of the management, including the
2nd and 3rd petitioners, have agreed for the same and
they are also not bound by the same."
In regard to Ext.R1 (m) relied on by the Government Pleader, it is
contended that statement in paragraph 2 therein is to be
understood, as meaning that the condition as to fixation of fees
does not attach to the courses offered by the petitioner. At any
rate it is contended that that was the understanding and there was
no wilful suppression of material facts.
11. To appreciate the contention of the State regarding
suppression of material facts, we have to first examine the issue of
whether the facts that are alleged to have been suppressed by the
petitioners were in fact material for the purposes of granting the
reliefs prayed for in the writ petition. It must be noticed that the
relief sought for by the petitioners in the writ petitions was against
the arbitrary fixation by the State Government of a fee structure
that was lower than that arrived at by the expert committee
appointed by the Government itself. It is their case that while in
earlier years they had been entering in the consensual agreement
and consenting to the fee structure fixed by the Government, they
were not agreeable to the unreasonably low fee structure fixed by
W.P.(C).NOS.19203
& 20438 OF 2013 20
the Government for the current academic year. No doubt, the
petitioners do have a case, as already noted earlier, that those
agreements were entered into in compelling circumstances. This
however is of no relevance when the petitioners, by their own
conduct, appear to have accepted the same without demur. In
other words, their grievance with respect to a particular fee
structure and not with regard to the usual arrangement whereby
the Government fixed the fee structure on the basis of consensual
agreements entered into with the petitioners. The contention of
the State Government that the No objection certificates and the
letters of permission that were granted to the petitioner were
documents that had a bearing on the issue to be decided in the
instant case, namely, the propriety of the actions of the
Government in fixing the fee structure, has to be examined in the
light of the above facts. On such examination, it is apparent that
the significance of the No objection certificates and the letters of
permission would only be in respect of the restriction, if any, which
the clauses in those documents sought to impose on the rights
urged by the petitioners in respect of the fixation of fee structure.
In other words, the State Government could only rely on the No
objection certificates and the letters of permission to contend that,
by virtue of the clauses in the said documents, the petitioners had
W.P.(C).NOS.19203
& 20438 OF 2013 21
by accepting the said documents waived any right that they had in
respect of the fixation of the fee structure to the para-medical
courses conducted by them. While the contentions of the State
Government would have appealed to us in a situation where the
rights urged by the petitioners were either statutory or contractual
in nature, we find it difficult to apply the same yardstick in the
instant case where the right urged by the petitioners in the matter
of fixation of fee structure is one that is comprised within the scope
of their fundamental rights under Article 19(1)(g) of the
Constitution. It is well settled that the fundamental rights
available to a citizen under Article 19(1)(g) as also the fundamental
rights to persons under Article 30(1) of the Constitution cannot be
waived. In this view of the matter, therefore, any documents that
is relied upon by the State Government for the purposes of
establishing a waiver on the part of the petitioners cannot be seen
as material to decide the issue of violation of fundamental rights of
the petitioner. Thus, when the relief sought for by the petitioners
in the writ petitions is essentially against the arbitrary fixation by
the State Government of an unreasonably low fee structure, the
only document that is material for the purposes of considering the
relief to be granted to the petitioner is the document whereby the
Government has chosen to fix an unreasonable low fee structure.
W.P.(C).NOS.19203
& 20438 OF 2013 22
The non-production of the letters of permission or the No objection
certificates issued to the petitioners cannot be viewed as a
suppression of material facts for the purposes of deciding the relief
claimed by the petitioner in the writ petitions.
While on the subject, we might note that the writ jurisdiction
is a discretionary jurisdiction. The insistence by the court on the
applicants taking a court into confidence about the facts in a case
is with a view to preserve the majesty of the court and to ensure
that there is no abuse of the process of the court. While it is
invariably the court which will decide as to whether any particular
fact is material or not for the purposes of the lis before it, it is only
when there is a finding with regard to suppression of material facts
that the court may refuse the discretionary relief to the applicant.
Essentially, what is frowed upon by the courts is the conduct of a
party that is intended to distort the facts whereby the court is led
to take a wrong decision. We do not see such a factual situation in
the instant cases. We may at once notice that in the instant cases,
while the rights granted to the petitioners, whether under Articel
19 or Article 30 of the Constitution, envisages a freedom to the
petitioners to enter into consensual agreements with the
Government with the view to effectuate their rights, it is the same
guarantee that comes to their aid in the event of the Government
W.P.(C).NOS.19203
& 20438 OF 2013 23
transgressing its limits in the matter of fee fixation.
12. Further, while the consent of the petitioners to a fixation
of fee by the Government will not, ipso facto, tantamount to a
waiver by the petitioners of their rights, a transgression by the
Government of its powers will certainly affect the fundamental
rights of the petitioners. This is how we must understand the
interplay of the rights available to the petitioners, on the one hand,
and the power vested in the Government on the other. The
petitioners right to fix a fee structure is subject to the power of the
Government to ensure that the fee structure so fixed is not
exploitative. The mechanism of fixation of fee structure can assume
the form either of the petitioners fixing the fee structure first,
subject to approval by the Government or the Government fixing
the fee structure first and the petitioners agreeing to the same.
Both the modes of fixation of fee structure are governed by the
same legal framework and it is only when one of the parties
exceeds the limits of its rights or powers that Courts have to step
in to restore legality. Viewed from this angle also, we cannot hold
the petitioners guilty of any suppression of material facts. This is
because the disclosure of the fact of having obtained a no-objection
certificate or letter of permission, with a condition obliging
W.P.(C).NOS.19203
& 20438 OF 2013 24
acceptance of the fee structure fixed by the Government, was not
material when the essence of the grievance in the writ petitions
was against the transgression of the powers of the Government
through a particular fee fixation. In the said no-objection
certificates and letters of permission there is no clause that
indicates that the petitioners were agreeable to any fixation of fee
by the Government, even an arbitrary and unreasonable one.
13. We now turn to the merits of the case in the writ
petition. The extent of regulation that is possible by State
Governments in the matter of conduct of professional courses by
self-financed educational institutions is now settled through the
decisions of the Supreme Court in TMA Pai Foundation, Islamic
Academy and P.A.Inamdar, (Supra). The following principles,
with regard to the issues under consideration in the instant cases,
can be culled out from the said decisions:
7 The expression "education" in the Constitution takes
within its fold education at all levels from the primary
school level up to the post-graduate level and it would
include professional education. The expression
"educational institution" would therefore take in
institutions imparting professional education.
W.P.(C).NOS.19203
& 20438 OF 2013 25
7 The right to establish and administer educational
institutions is guaranteed under the Constitution to all
citizens under Article 19 (1)(g) and 26, subject to the
provisions of Articles 19 (6) and 26 (a) respectively.
The right is also guaranteed to minorities specifically
under Article 30.
7 In the case of minority institutions, the right to admit
students being an essential facet of the right to
administer educational institutions of their choice, as
contemplated under Article 30 of the Constitution, the
State Government may not be entitled to interfere with
that right, so long as the admission to the unaided
educational institution is on a transparent basis and
the merit is adequately taken care of. The right to
administer, not being absolute, there could be
regulatory measures for ensuring educational
standards and maintaining excellence thereof, and it is
more so in the matter of admissions to professional
institutions.
7 A minority institution may have its own procedure and
method of admission as well as selection of students,
but such procedure must be fair and transparent and
selection of students in professional and higher
educational colleges should be on the basis of merit.
The procedure adopted and selection made should not
tantamount to maladministration. Even an unaided
minority institution ought not to ignore merit of the
W.P.(C).NOS.19203
& 20438 OF 2013 26
students for admission, while exercising its right to
admit students to the said colleges, as in that event,
the institution will fail to achieve excellence.
7 A minority institution is entitled to have its own fee
structure, subject to the condition that there can be no
profiteering and, capitation fee cannot be charged. A
provision for reasonable surplus should be made. The
relevant factors that should be taken into
consideration for the fee structure would be
infrastructure and facilities available, the investments
made, salaries paid to the teachers and staff and
future plans for expansion and betterment of the
institution.
7 The fixation of a fee structure is a fundamental right.
The fee has to be decided by the institutions
themselves and such right of the institutions cannot be
abrogated by the State. The fee charged has to be
non-exploitative in nature and capitation fees cannot
be charged.
14. It must, at once, be noticed that the right of private
persons to establish and administer self-financing institutions has
been held to be a facet of the fundamental rights available to a
person under Article 19(1)(g) of the Constitution. In the case of an
institution managed by a minority community, the right has also
W.P.(C).NOS.19203
& 20438 OF 2013 27
been traced to the fundamental right available to such communities
under Article 30 (1) of the Constitution. Any regulation or control
over these rights, when sought to be enforced by the State
Government must satisfy the requirement of being a restriction
that is either envisaged or permissible under the Constitution. No
doubt, regulations that apply generally to all persons carrying on
the particular occupation can be made applicable to the
establishment and administration of self-financing institutions also.
The important aspect, however, is that in the context of a
fundamental right under Article 19 (1) (g) of the Constitution, a
regulation that seeks to restrict the rights enjoyed by a person,
must be one that is imposed in public interest and through a law
that is made by the State. The word "Law", for the purposes of
Article 19 (6), has been held to mean Statute Law and not mere
executive orders of the State Government. Similarly when it comes
to the rights under Article 30 (1) of the Constitution, it has been
held that, although unlike Article 19 the right conferred on the
minorities is absolute, unfettered and unconditional, this does not
mean that this right gives a free licence for maladministration so as
to defeat the avowed object of the article namely to advance
excellence and perfection in the field of education. Thus, while the
State or any other statutory authority has no right to interfere with
W.P.(C).NOS.19203
& 20438 OF 2013 28
the internal administration or management of the minority
institution, the State can certainly take regulatory measures to
promote the efficiency and excellence of educational standards. It
is bearing in mind these principles that we must proceed to
examine the legality of the regulatory regime that is sought to be
enforced against the petitioners in the instant cases.
15. As already noted from the facts, the activity that is
sought to be regulated by the State Government in the instant
cases is the conduct of para-medical courses within the State. To
regulate the conduct of professional courses in the field of
medicine, the State Legislature has already enacted the Kerala
Professional Colleges or Institutions (Prohibition of Capitation Fee,
Regulation of Admission, Fixation of non-exploitative fee and other
measures to ensure equity and excellence in Professional
Education) Act, 2006 (hereinafter referred to as 'KPCI Act'). The
said Act has not, however, been made applicable to para-medical
courses in the State and it is thus that the State Government chose
to regulate the field through executive orders issued from time to
time. The counter affidavit filed by the State Government would
indicate that the first step towards regulation in this field was the
setting up of a para-medical council to prescribe the fees that could
W.P.(C).NOS.19203
& 20438 OF 2013 29
be charged by institutions conducting para-medical courses. That
was through Ext.R1 (a) G.O. dated 21.03.2002. Thereafter, through
Ext.R1 (b) G.O. dated 30.04.2008, the State Government
streamlined the procedure for conduct of para-medical courses in
the State. The said G.O. is extracted hereunder:
GOVERNMENT OF KERALA
ABSTRACT
Health & Family Welfare Department-Paramedical Council-Procedure for
submitting application for Paramedical courses-Guidelines revised-Orders
Issued
---------------------------------------------------------------------------------------------------------------
HEALTH AND FAMILY WELFARE (K) DEPARMENT
GO(Rt)No.1598/2008/H&FWD Dated, Thiruvananthapuram:30/04/2008
---------------------------------------------------------------------------------------------------------------
Read: 1. GO(MS) No.73/2002/H&FWD dated: 21.03.2002.
2. Minutes of the Paramedical Council meeting held on
24.01.08 and 04.04.08.
ORDER
As per the Government order read above Paramedical Council was constituted for the administration of Paramedical institutions and to ensure qualify of Paramedical courses in Self Financing Sector. A technical committee to prescribe minimum standards for staring Paramedical courses and a District Inspection team were also constituted. Governmetn have been considering to streamline the procedural formalities for approval of new Paramedical courses and to prescribe uniform application format for applications for new courses. The Paramedical Council in its meeting held on 24.01.2008 and 04.04.2008 recommended Government to issue orders on uniform application format, time schedule for submitting application, application fee, District Inspection Team, starting of new Diploma in Health Inspector Course (DHIC) in Government sector, annual examination system and syllabus for Diploma in Health Inspector Course (DHIC).
2. Government have examined the case in detail and are pleased to issue the following orders in respect of the Paramedical courses being conducted by Director of Medical Education and Director of Health W.P.(C).NOS.19203 & 20438 OF 2013 30 Services in Self Financing Sector.
1.Application for new courses The following schedule of time is prescribed for submitting application for new courses in Self Financing sector.
1.Notification - April 5
2.Last date of submission of Application - May 15
3.Verification of application - May 16 to May 31
4.Inspection Report from DME/DHS -1st June to 15th August
5.Meeting of Paramedical Council and recommendation to Government -16th Aug to 15th Sept.
6.Letter of intent by Government -16th to 15th Oct.
7.Construction and Infrastructural -16th Oct to 15th Oct facilities by institutions Next Year(One Year)
8. Inspection by Technical team - 16th Oct to 15th Jan Next year
9.Letter of Permission by Government -16th Jan to 15th March
10.Prospectus -16th March to 15th May
11. Admission Notification -20th May
12.Last Date of Application -10th June
13.Publication of Rank List -15th July
14. Counselling for admission -15th August
15. Starting of classes -15th September The model application and minimum standards shall be downloaded from the website "www.arogyakeralam.gov.in" till website for Paramedical Council is made operative. The application shall be accompanied by a Demand Draft for Rs.50,000/-(Rupees Fifty Thousand Only) per course towards non-refundable application fee, drawn in favour of the Secretary, Paramedical council, payable in the BT Main branch, Thiruvananthapuram. On receipt of valid application the District Inspection team with the following members will visit the institution.
1) District medical Officer(Health)/Deputy district Medical Officer
(Health)
2) District Programme Manager, NRHM
W.P.(C).NOS.19203
& 20438 OF 2013 31
3) One Subject expert from DME/DHS
The team will submit report to the Paramedical council. The
Paramedical council will recommend to Government for considering Letter of intent/NOC.
2. Annual Inspection Fee. An annual inspection fee of Rs.10,000/- (Rupees Ten Thousand Only) per course will be charged from the self financing institutions from the year 2008-09 for conducting annual inspection by the team of Director of Medical Education/Director of Health Services. The amount shall be remitted as Demand Draft drawn in favour of Secretary, Paramedical council, payable at SBT, Main branch, Thiruvananthapuram.
3. Collection charge for Syllabus. The new syllabus for the courses conducted by Director of Medical Education/Director of Health Services, will be supplied for Rs.50/- (Rupees Fifty Only) per course on production of Demand Draft drawn as mentioned above. The old syllabus will be supplied free of cost.
4. Starting of DHIC in Public Health Training Centre, Thiruvananthapuram. From the year 2008-09, the Diploma in Health Inspector Course (DHIC) will be conducted in the Public Health Training Centre, Thiruvananthapuram by Director of Health Services, utilising the available infrastructural facilities and without creation of new posts. The existing syllabus for Diploma in Health Inspector Course (DHIC) will be modified including the subjects viz. Biomedical waste management, geriatric health cancer detection, palliative care, non-communicable diseases, prevention of food adulteration, adolescent health etc. The semester examination system for Diploma in Health Inspector Course (DHIC) will be dispensed with, from 2008-09 admission batch and annual exam will be conducted as in the case of diploma courses conducted by the Director of Medical Education.
5. The Director of Medical Education/Director of Health Services will take further action.
(By Order of the Governor) T.E.MERCY BAI DEPUTY SECRETARY
16. It was on the applications preferred by the petitioners in W.P.(C).NOS.19203 & 20438 OF 2013 32 terms of the above G.O. that they were granted the necessary no-objection certificates and letters of permission for commencing para-medical courses in their respective institutions. Ext.R1 (m) is a no-objection certificate issued, inter alia, in favour of the 2nd petitioner and it is extracted hereunder;
GOVERNMENT OF KERALA ABSTRACT Health & Family Welfare Department-Paramedical Council-Procedure for submitting application for Paramedical courses-Guidelines revised-Orders Issued
---------------------------------------------------------------------------------------------------------------
HEALTH AND FAMILY WELFARE (K) DEPARMENT G.O.(MS)No.338/2008/H&FWD Dated, Thiruvananthapuram:05/07/2008
--------------------------------------------------------------------------------------------------------------- Read: 1. Application dated 29.11.04 from SNGM Educational & Cultural Trust, Thuravoor, Alappuzha.
2. Application dated 19.01.05 from RCM Hospital, Thripunithura.
3. Application dated 19.04.05 from Elamkulam Charitable Trust, Nilambur.
4. Application dated 14.10.05 from MES Medical College, Malaparamba.
5. Application dated 29.11.05 from K.Velayudhan Memorial Trust, Cherthala.
6. Application dated 09.12.05 from Alleppey Educational Society, Alleppey
7. Application dated 23.12.05 from Manjeri Eye Hospital Pvt. Limited.
8. Application dated 28.12.05 from Moulana Hospital, Perinthalmanna.
9. Application dated 11.1.06 from Pattom Thanupillai Memorial Institute of Para Medical Sciences, Thiruvananthapuram.
10. Application dated 12.01.06 from Karunya Educational Trust, Amaravila, Thiruvananthapuram District.
11. Application dated 27.01.06 from Jubilee Memorial Hospital, Thiruvananthapuram.
12. Application dated 27.01.06 from G.K.Hospital, Thiruvalla.
13. Application dated 07.02.06 from Shifa Medicare Trust, Perinthalmanna.
W.P.(C).NOS.19203 & 20438 OF 2013 33 ORDER As per the applications read above, Self Financing institutions have requested Government to grant Letter of Intent/No Objection Certificate for starting various Paramedical courses. Government have examined the case and are pleased to issue Letter of Intent/No Objection Certificate to the thirteen Self Financing institutions (Annexure) for starting Paramedical courses mentioned against each, subject to fulfilling all the basic infrastructural facilities including construction of building and teaching faculty for running the course.
2. The institutions shall agree to the condition that in the case of Diploma courses 50% seat will be filled up from merit list to be prepared by the Director of Medical Education and for Diploma in Health Inspector course 50% seats will be filled up from the merit list to be prepared by the Director of Health Services and fee to those seats will be on the rates fixed by Government from time to time.
3. For Degree course the institutions shall agree to admit students on 50% merit and 50% management seat basis. The merit seat students shall be admitted from the state merit list prepared by the Commissioner of Entrance Examinaiton and 50% seat by Management, subject to the conditions in the prospectus for each year. The institutions shall obtain affiliation from the concerned University.
4. On completion of all infrastructual facilities, the institutions shall reort to Government, for considering Letter of Permission and the course will be started only after getting Letter of Permission from Government. The NOC will be valid for a period of one year.
5. The list of institutions is given in Annexure.
(By Order of the Governor) Dr.VISHWAS MEHTA SECRETARY
17. Similarly, Ext.R1 (c) is the letter of permission issued in respect of the 2nd petitioner in W.P.(C).No.19203/2013. The said letter of permission is extracted hereunder:
GOVERNMENT OF KERALA ABSTRACT Health and Family Welfare Department -Letter of Permission to MES Institute of Paramedical Sciences, Perinthalmanna, Malappuram for starting Diploma in Medical Laboratory Technology (DMLT) course - Granted -
W.P.(C).NOS.19203 & 20438 OF 2013 34 Orders issued
------------------------------------------------------------------------------------------------------------------
HEALTH AND FAMILY WELFARE (K) DEPARTMENT G.O.(MS)No.542/2011/H&FWD Dated, Thiruvananthapuram:10/11/2011.
------------------------------------------------------------------------------------------------------------------- Read: 1. G.O.(Ms) No.338/2008/H&FWD dated 05.07.08
2. G.O.(Ms) No.430/2011/H&FWD dated 18.07.11
3. Letter No.MES/IPS/ADMN/GNRL dated 27.10.2011 from the Course Director, MES Institute of Paramedical Sciences, Palachode P.O., Perinthalmanna, Malappuram.
4. Letter no.B3/21342/2011/DME dated 10.10.2011 from the director of Medical Education, Thiruvananthapuram ORDER As per Government Order read as first paper above, No Objection Certificate with validity period of one year was granted to MES Institute of Paramedical Sciences, Perinthalmanna, Malappuram for starting B.Sc in Medical Laboratory Technology (B.Sc.MLT), Diploma in Medical Laboratory Technology (DMLT) and Diploma in Operation Theater Technology & Anesthesia Technology (DOTT) (renamed as Diploma in Operation Theater & Anesthesia Technology) (DOTAT) courses. Later on, Letter of Permission was granted to start B.Sc. MLT course vide order read as second paper above. Now the institution (as per paper read as third paper above) has expressed their willingness to share 50% of seats and adopt fees prescribed by Government and requested to grant Letter of Permission to start Diploma in Medical Laboratory Technology course from 2011-12 academic year. The Director of Medical Education vide paper read as fourth paper above has recommended to grant the same with an intake of 30 students as the institution have requisite infrastructure, equipments and faculty for conducting the course.
2. Government examined the matter in detail and are pleased issue orders as follows:
i. The validity of No Objection Certificate granted to MES Institute of Paramedical Sciences, Perinthalmanna, Malappuram for starting Diploma in Medical Laboratory Technology (DMLT) course is extended up to 05.11.2012.
ii. Letter of Permission is granted for starting Diploma in Medical Laboratory Technology (DMLT) course from the academic year 2011-12 with an annual intake of 30 (thirty) students subject to the conditions that the institution:
a) Shall agree to admit students on 50% merit and 50% management basis and the merit seat students W.P.(C).NOS.19203 & 20438 OF 2013 35 shall be admitted from the respective State merit list prepared by the Director of Medical Education/Director, LBS Centre and 50% seats by Management based on merit, at the rate of fee fixed by Government from time to time, subject to the other conditions in the prospectus issued by the director of Medical Education for each year.
b) Shall execute an Agreement with the Health and Family Welfare (K) Department in respect of fees and admissions and shall adhere to all conditions contained in that Agreement and the course will be started only after executing the Agreement.
c) Shall produce a bank Guarantee for Rs.5,00,000/- (Rupees Five Lakhs only)
d) Letter of Permission will be withdrawn if any of the above conditions is violated.
3. The Director of Medical Education, Thiruvananthapuram/ Director LBS Centre, Thiruvananthapuram shall include the institution in the Prospectus for admission to Paramedical Diploma courses for 2011- 12 and allot students to 50% of the Government merit seats of the total seats in the institution from the State merit list prepared for the year 2011-12 as and when Government intimate them that the institution has fulfilled all the conditions prescribed in the Letter of Permission.
(By Order of the Governor) ELPHGE TAJAN.J UNDER SECRETARY
18. After obtaining the letters of permission, and commencing the para-medical courses contemplated therein, the petitioners enter into consensual agreements with the State Government for the purposes of seat sharing so that sufficient seats, in the course carried on by the institute concerned, are made available to the State Government for filling up under the State merit quota. Ext.R1 (f) is a typical seat sharing agreement entered W.P.(C).NOS.19203 & 20438 OF 2013 36 into between the 2nd petitioner in W.P.(C).No.19203/2013 and the State Government. Ext.R1 (g) is an affidavit that is submitted by the same petitioner before the State Government in connection with Ext.R1 (f) agreement.
19. It will be apparent, from a perusal of Exts. R1 (b), R1 (m), R1 (c), R1 (f) and R1 (g), that the conduct of para-medical courses in the State is regulated by executive orders issued by the State Government and that the prescription regarding the fixation of a fee structure, as approved by the State Government, serves to qualify or condition the right that is obtained by the institution in question. In other words, the very permission that is obtained by an institution is subject to a condition that the institution concerned shall not charge fees that do not have the approval of the State Government. The consensual agreements that are entered into between the various institutions and the State Government deal primarily with the aspect of seat sharing. Although some of these agreements may also, incidentally, refer to the fees approved by the State Government, the obligation of the institution in question to charge only such fees as are approved by the State Government is one that stems from the executive order granting the no- objection certificate/letter of permission and not to the consensual W.P.(C).NOS.19203 & 20438 OF 2013 37 agreement subsequently entered into with the State Government. In other words, the obligation to charge the fee approved by the State Government is not contractual in nature but one that is mandated by a regulation. We have thought it fit to clarify this aspect only because the petitioners have a contention that the right to admit students to para-medical courses at a fee decided by them is an integral part of their fundamental right, under Article 19 (1)
(g) or Article 30 (1) as the case may be, and that any consensual agreement with the State Government that takes way this right must be ignored on the settled principle that fundamental rights cannot be waived.
20. The question then arises as to whether the stipulation as regards the fee structure, traceable to the no-objection certificates/letters of permission issued to the petitioners, can be said to be a fetter on the fundamental rights available to the petitioners. As already noted above, the decisions of the Supreme Court in TMA Pai Foundation, Islamic Academy and P.A.Inamdar, (Supra), clearly recognise the existence of a power in the State Government to take regulatory measures to promote the efficiency and excellence of educational standards. Factually, however, one cannot discount the possibility of the State W.P.(C).NOS.19203 & 20438 OF 2013 38 Government imposing conditions, including fee structures that are so unreasonable as to effectively deprive the institutions of their constitutional rights or render their fundamental rights nugatory. In such cases, this Court would have to examine the rationale for the conditions or the manner in which the fee structure was arrived at by the State Government, so as to ensure conformity with the requirement of reasonableness. An additional requirement that has to be ensured, in cases where the right sought to be protected is a fundamental right under Article 19 of the Constitution, is that the regulation imposed by the State Government is through enacted legislation and not through executive orders.
21. It may not be out of place to notice, at this stage, a division bench decision of this Court in Lisie Medical & Educational Institutions v State of Kerala - (2007 (1) KLT
409)- wherein this Court had occasion to consider the Constitutional validity of the KPCI Act, 2006. The judgment gives an indication of the limits of permissible regulation by the State Government over the activities of self-financing institutions, including minority institutions, that would be countenanced by a Court entrusted with the task of protection of Constitutional rights. The issue that arose for consideration in that case was the W.P.(C).NOS.19203 & 20438 OF 2013 39 Constitutional validity of the various provisions in the KPCI Act that sought to regulate the admission process and collection of fees in the various self-financing educational institutions offering professional courses in the State. The court, after a detailed analysis of the provisions of the Act, held, inter alia, that Section 3 of the said Act, that dealt with the method of admissions to professional colleges or institutions and conferred vast powers on the State in that regard, was invalid and ultra vires the Constitution. The court observes at para 38 of the judgment that;
"The unaided minority or non-minority institutions have a fundamental right enshrined under Article 19 (1) (g) and 30 (1) of the Constitution of India to run educational institutions. The minority institutions have an additional right, which may be called as even a protection, to establish and administer the institutions of their choice. The admissions can be regulated by legislation, but such legislation can only and surely be for ensuring the triple test of fair, transparent and non-exploitative procedure in the matter of admission."
22. Further, the Court also proceeded to read down the provisions of Section 6 of the Act, that dealt with fixation of fees by the Government, so as to confine the Government's role to merely ensuring that there was no element of profiteering in the fees fixed by the institutions and that no capitation fee was charged. In W.P.(C).NOS.19203 & 20438 OF 2013 40 paragraph 47 of the judgment it is observed that;
"It is clear that fixation of fee structure is a fundamental right of educational institutions, more particularly of those which are unaided. It is further clear that the fee has to be decided by the institutions themselves and such right of the institutions cannot be abrogated by the State. While, however, fixing the fee structure, the institutions cannot indulge into profiteering nor can charge capitation fee, even though the element of surplus income to cater to the future needs of the institutions can be definitely taken into account while fixing the fee. The committees that may be constituted or the Law that may be made could only regulate the profiteering and charging of capitation fee. The committees would themselves have every right to modify the fee structure fixed by the institutions and debar institutions by an order and if legislation is made to that effect by law, to reduce the fee in the event of its coming to a finding that the fee structure had a component of profiteering and/or capitation fee, but nothing beyond that. The fixation of fee structure is the right of an institution particularly when unaided. The right of the committees that may be constituted, or the Government to legislate, in our considered view, cannot go beyond examining the fee structure to find out therein the element of profiteering or charging of capitation fee, be it by monitoring committees or by legislation.
23. The Lisie Medical & Educational Institutions case (Supra) dealt with institutions that came within the purview of the KPCI Act, 2006. In the instant case, we are concerned with para- medical courses that do not come within the purview of the said Act. The regulation by the State, in these cases, is through W.P.(C).NOS.19203 & 20438 OF 2013 41 executive orders although the tenor of the said orders is similar to the provisions of the KPCI Act that were struck down as unconstitutional by this Court. It is not the contention of the State Government that it can arrogate to itself a greater power than what is clarified by the Supreme Court in TMA Pai Foundation, Islamic Academy and P.A.Inamdar, (Supra) in the matter of regulation of the admission process and fee structure to private self-financing professional institutions and minority institutions. What is contended is that the petitioners had, through an acceptance of the no-objection certificates and the letters of permission granted by the State Government, agreed to abide by the admission procedure and fee structure stipulated by the State Government. Whether the said action of the petitioners would alter the legal position is what we have to consider. For this, we have to first examine the nature of the conditions imposed by the State Government through the no-objection certificates and letters of permission granted to the petitioners.
24. As already noticed, the conditions in the no-objection certificates and the letters of permission issued to the petitioners oblige them to abide by an admission process and fee structure that is stipulated by the State Government. While the stipulation of an W.P.(C).NOS.19203 & 20438 OF 2013 42 admission process is not objected to in the instant cases, the stipulation of a fee structure is. While the State Government had initially proposed to fix the fee structure through a committee constituted for the purpose, and the said committee had in fact suggested such a fee structure, the Government did not accept the suggestions of the committee and proceeded to fix its own fee structure. This action of the State Government is found objectionable by the petitioners since, going by the settled law on the subject, the power of the State Government in the matter of regulating the fee structure of self-financing professional institutions and minority institutions is only to the extent of ensuring that the fee structure is non-exploitative in nature and that no capitation fee is charged. The position must be the same even if the State Government chooses to regulate the fee structure through conditions imposed in no-objection certificates or letters of permission that are recognised, under a regulatory regime, as necessary for the conduct of para-medical courses in the State. We find force in the contention of the petitioners. The State cannot do indirectly, what it cannot do directly. We find that, on the one hand, there is an expert body that is constituted to go into the issue of a fee structure for para-medical courses run by the various institutions in the State. The said body has drawn up a detailed W.P.(C).NOS.19203 & 20438 OF 2013 43 report showing the factors that it has taken into account while arriving at the fee structure that was ultimately proposed. No doubt, the State Government has a case (as stated in para 16 of the counter affidavit) that the students applying and studying for para- medical courses are generally not from affluent families and that is why the Government felt that the fee suggested by the expert committee was too higher and therefore unacceptable. We do not find any merit in the said stand of the State Government which really has but a limited role to play in the matter of fixation of fee structure of self financing institutions. This action of the State spells in the realm of arbitrariness and unreasonableness. It also ignores the mandate of the Supreme Court judgments that have clearly delineated the limits of its powers in the matter of fixation of fee structure. In the absence of any material to justify the fee structure proposed by the State Government, the condition in the no-objection certificates/letters of permission, imposing the said fee structure on the petitioners, cannot be viewed as forming part of a valid regulation. If the State Government if of the view that a fee structure proposed by the petitioners is exploitative in nature, it has to produce materials to demonstrate that the fee structure is such. It cannot merely opine that the fee structure is exploitative and suggest an alternate fee structure without any material to W.P.(C).NOS.19203 & 20438 OF 2013 44 support it.
25. Since we are of the view that the fixation of fee structure by the State Government is arbitrary and unreasonable, the contention of the State Government that the petitioners had accepted the fee structure, as a condition for the issuance of no- objection certificates/letters of permission need not detain us for long. An arbitrary fixation of a fee structure by the State Government, while violative of the fundamental rights of the petitioners under Article 14 of the Constitution of India, is also violative of their fundamental rights under Article 19 (1)(g), or Article 30 as the case may be. The acceptance by the petitioners, either through consensual agreements or as conditions in a regulatory regime, of the said conditions, will not amount to a waiver, by the petitioners, of their fundamental rights for even if their conduct justified such an inference, it is trite that fundamental rights cannot be waived. (See: [Amalgamated Coalfields Ltd. and another v. Janapada Sabha Chhinwara and others (AIR 1964 SC 1013), Olga Tellis and others v. Bombay Municipal Corporation and others (AIR 1986 SC
180), Sant Lal Gupta and Others v. Modern Cooperative Group Housing Society Limited and Others ((2010)) 13 SCC W.P.(C).NOS.19203 & 20438 OF 2013 45
336) and Dr.Subramanian Swamy v. State of Tamil Nadu and Others ((2014) 5 SCC 75)]. We must also note that, in the instant cases, the conditions with regard to the fee structure are imposed through a regulatory regime that traces its origin to executive orders issued by the State Government. If the conditions are to have legal effect as reasonable restrictions on the fundamental rights of the petitioners under Article 19 (1)(g) of the Constitution, then apart from being reasonable, they have also to trace their origin to a valid piece of legislation made by the State Government. This is admittedly not the case here. We feel, therefore, that the fixation of the fee structure by the State Government in the instant cases is illegal and unconstitutional.
In the result, the writ petitions are allowed as follows:
7 The impugned orders of the Government (Ext.P4 in W.P.(C).No.19203/2013 and Ext.P28 in W.P.(C).
No.20438/2013) are quashed;
7 It is declared that the State Government has no power to fix the fee structure in respect of the para- medical courses conducted by the petitioner institutions save to the limited extent of ensuring that they are not exploitative in nature and that no capitation fee is charged.
7 It is further declared that any restriction, by the W.P.(C).NOS.19203 & 20438 OF 2013 46 State Government, on the autonomy of the self- financing institutions in the matter of conduct of para-medical courses in the State, shall be effected only through enacted law of the State legislature and not through executive orders;
7 In the absence of any material justifying a departure from the fee structure fixed by the expert committee constituted by the State Government for para-medical courses in the State for the academic year 2013-14, the said fee structure shall govern the collection of fees by the petitioner institutions for the said academic year and the current academic year.
K.M.JOSEPH JUDGE A.K.JAYASANKARAN NAMBIAR JUDGE prp