Karnataka High Court
Vydehi Institute Of Medical Sciences vs State Of Karnataka on 29 October, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.P. No.20701 OF 2022 (EDN-RES)
C/W
W.P. No.20917 OF 2022 (EDN-RES)
W.P. No.20921 OF 2022 (EDN-RES)
IN W.P. No.20701 OF 2022
BETWEEN:
VYDEHI INSTITUTE OF MEDICAL SCIENCES
AND RESEARCH CENTRE
NO.82, EPIP AREA, WHITEFIELD
BANGALORE-560066
REPRESENTED BY ITS PRINCIPAL/DEAN
DR. SHREEDHAR VENKATESH
AGED ABOUT 59 YEARS
S/O LATE KANNAIAH
R/O BENGALURU.
... PETITIONER
(BY MR. MADHUSUDHAN R. NAIK, SR. COUNSEL FOR
MR. SURAJ NAIK, ADV.,)
AND:
1. STATE OF KARNATAKA
REP. BY ITS SECRETARY
2
DEPARTMENT OF HEALTH AND
FAMILY WELFARE, (MEDICAL EDUCATION)
M S BUILDING, BANGALORE-560001.
2. DIRECTORATE OF MEDICAL EDUCATION
ANANDRAO CIRCLE, BENGALURU-560009
REPRESENTED BY DIRECTOR.
3. KARNATAKA EXAMINATION AUTHORITY (KEA)
(DESIGNATED COMMON COUNSELLING AUTHORITY)
18TH CROSS, SAMPIGE ROAD
MALLESHWARAM, BENGALURU-560012
REPRESENTED BY THE EXECUTIVE DIRECTOR.
4. ASSOCIATION OF MINORITY PROFESSIONAL
COLLEGES IN KARNATAKA (AMPCK)
UNIT NO.205, LAKSHMI APARTMENTS
NO.6, CORNWELL ROAD, LANGFORD GARDEN
RICHMOND TOWN, BANGALORE-560025
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS
(BY MR. DHYAN CHINNAPPA, AAG FOR
MR. LAKSHMINARAYAN, AGA FOR R1 & R2
MR. N.K. RAMESH, ADV., FOR R3
MR. D.N. NANJUNDA REDDY, SR. COUNSEL FOR
MR. ROHAN HOSMATH, ADV., FOR R4)
---
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN
APPROPRIATE WRIT, ORDER OR DIRECTION IN THE NATURE
OF CERTIORARI, AND QUASH THE IMPUGNED SEAT MATRIX
PUBLISHED BY THE RESPONDENT No-3 AND HOSTED ON
WEBSITE OF KARNATAKA EXAMINATION AUTHORITY VIDE
(ANNEXURE-F, G, AND H) IN SO FAR AS IT PERTAINS TO
ALLOCATION OF SEATS OF THE PETITIONER INSTITUTION IS
CONCERNED AND BY ISSUANCE OF A MANDAMUS DIRECT
TO RE-WORK THE APPORTIONMENT ON PAR WITH OTHER
INSTITUTIONS TAKING ENTIRE SANCTIONED INTAKE FOR
3
APPORTIONMENT AND. ISSUE AN APPROPRIATE WRIT, OR
DIRECTION IN THE NATURE OF CERTIORARI, AND QUASH
THE IMPUGNED FEE NOTIFICATION HOSTED ON WEBSITE
OF KARNATAKA EXAMINATION AUTHORITY VIDE
(ANNEXURES-K) IN SO FAR AS IT PERTAINS TO NOTIFY THE
FEE PAYABLE FOR DIFFERENT CATEGORIES OF ADMISSION
IN PETITIONER INSTITUTION AND BY ISSUANCE OF THE
MANDAMUS DIRECTING TO RE WORK THE FEE STRUCTURE
PROVIDING ONLY FOR 20 PERCENT FEE CONCESSION FOR
GOVERNMENT CATEGORY ADMISSIONS ON RE WORKING
OUT AT THE CURRENT FEE FIXED AT Rs.12,48,176/- WHICH
WORKS OUT TO RS.9,98,540/- Rs.2,49,638/- AND
Rs.1,25,576/- RESPECTIVELY FOR CLINICAL PARA-CLINICAL
AND PRE-CLINICAL COURSES & ETC.
IN W.P. No.20917 OF 2022
BETWEEN:
DR. B.R. AMBEEDKAR MEDICAL COLLEGE
48, INDRAJITSWAMY LAYOUT
SHAMPUR MAIN ROAD, SHAMPURA
BENGALURU, KARNATAKA-560045
REPRESENTED BY ITS PRINCIPAL
DR. B.S. RAMESH
S/O LATE B. SHAMBU RAO
AGED ABOUT 53 YEARS.
... PETITIONER
(BY MR. K. SHASHI KIRAN SHETTY, SR. COUNSEL FOR
MR. PAVAN G.N. ADV.,)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF HEALTH AND FAMILY WELFARE
(MEDICAL EDUCATION), M S BUILDING
BANGALORE-560001.
4
2. DIRECTORATE OF MEDICAL EDUCATION
ANANDRAO CIRCLE, BENGALURU-560009
REPRESENTED BY DIRECTOR.
3. KARNATAKA EXAMINATION AUTHORITY (KEA)
(DESIGNATED COMMON COUNSELLING AUTHORITY)
18TH CROSS,, SAMPIGE ROAD
MALLESHWARAM, BENGALURU-560012
REPRESENTED BY THE EXECUTIVE DIRECTOR.
4. THE KARNATAKA PROFESSIONAL COLLEGE
FUNDATION, NO.132, 2ND FLOOR
11TH MAIN, 17TH CROSS
MALLESHWARAM, BANGALORE-560055
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS
(BY MR. DHYAN CHINNAPPA, AAG FOR
MR. LAKSHMINARAYAN, AGA FOR R1 & R2
MR. N.K. RAMESH, ADV., FOR R3)
---
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS OF THE PROCEEDINGS BEFORE THE
RESPONDENTS AND BE PLEASED TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION QUASHING THE IMPUGNED
SEAT MATRIX PUBLISHED BY RESPONDENT NO.3 AND
HOSTED ON WEBSITE OF KARNATAKA EXAMINATION
AUTHORITY VIDE (ANENXURES-F, G, H AND J) INSOFAR AS
IT PERTAINS TO ALLOCATION OF SEATS OF THE
PETITIONER INSTITUTION IS CONCERNED AND BY
ISSUANCE OF A MANDAMUS DIRECT TO RE-WORK THE
APPOINTMENT ON PAR WITH OTHER INSTITUTIONS TAKING
ENTIRE SANCTIONED INTAKE FOR APPOINTMENT AND.
ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY
OTHER APPROPRIATE WRIT, ORDER OR DIRECTION QUASH
THE IMPUGNED FEE NOTIFICATION HOSTED ON WEBSITE
5
OF KARNATAKA EXAMINATION AUTHORITY VIDE
(ANENXURES-K) INSOFAR AS IT PERTAINS TO NOTIFY THE
FEE PAYABLE FOR DIFFERENT CATEGORIES OF ADMISSION
IN PETITIONER INSTITUTION AND BY ISSUANCE OF A
MANDAMUS DIRECTING TO RE-WORK THE FEE STRUCTURE
PROVIDING ONLY FOR 33 PERCENT FEE CONCESSION FOR
GOVERNMENT CATEGORY ADMISSIONS ON RE-WORKING
OUT AT THE CURRENT FEE FIXED AT RS.6,98,280/-,
RS.1,74,570/- AND RS.87,286/-, WHICH WORKS OUT TO
RS.1,41,40,172/- PER ANNUM RESPECTIVELY FOR
CLINICAL, PARA-CLINICAL AND PRE-CLINICAL COURSES &
ETC.
IN W.P. No.20921 OF 2022
BETWEEN:
NAVODAYA MEDICAL COLLEGE
NAVODAYA NAGAR, RAICHUR-584103
REPRESENTED BY ITS PRINCIPAL
DR. B. VIJAYCHANDRA
S/O LATE SRI. BALACHAKRISHNAN
AGED ABOUT 68 YEARS.
... PETITIONER
(BY MR. A. SHANKAR, SR. COUNSEL FOR
MR. SURAJ NAIK, ADV.,)
AND:
1. STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPARTMENT OF HEALTH AND FAMILY WELFARE
(MEDICAL EDUCATION)
M S BUILDING, BANGALORE-560001.
2. DIRECTOR OF MEDICAL EDUCATION
ANAND RAO CIRCLE, BENGALURU-560009.
3. KARNATAKA EXAMINATION AUTHORITY
18TH CROSS, SAMPIGE ROAD
6
MALLESHWARAM WEST, BENGALURU-560012
REPRESENTED BY ITS EXECUTIVE DIRECTOR.
4. ASSOCIATION OF MINORITY PROFESSIONAL
COLLEGES IN KARNATAKA
UNIT NO.205, LAKSHMI APARTMENTS
NO.6, CORNWELL ROAD, LANGFORD GARDEN
RICHMOND TOWN, BANGALORE-560025.
... RESPONDENTS
(BY MR. DHYAN CHINNAPPA, AAG FOR
MR. LAKSHMINARAYAN, AGA FOR R1 & R2
MR. N.K. RAMESH, ADV., FOR R3)
---
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN
APPROPRIATE WRIT ORDER OR DIRECTION IN THE NATURE
OF DECLARATION DECLARING THAT CLAUSE 3(b)(ii) OF THE
CONSENSUAL AGREEMENT DATED 04.10.2022 VIDE
ANNEXURE-J IS NOT BASED ON CONSENSUS BUT AN
IMPOSED TERM AND HENCE WOULD NOT APPLY TO THE
PETITIONER. ISSUE AN APPROPRIATE WRIT, ORDER OR
DIRECTION IN THE NATURE OF THE CERTIORARI, AND
QUASH THE IMPUGNED SEAT MATRIX PUBLISHED BY THE
RESPONDENT No-3 AND HOSTED ON WEBSITE OF
KARNATAKA EXAMINATION AUTHORITY VIDE (ANNEXURES-
P, Q, AND R RESPECTIVELY) INSOFAR AS IT PERTAINS TO
ALLOCATION OF SEATS OF THE PETITIONER INSTITUTION IS
CONCERNED AND BY THE ISSUANCE OF A MANDAMUS
DIRECT TO RE-WORK THE APPOINTMENT ON PAR WITH
OTHER INSTITUTIONS TAKING ENTIRE SANCTIONED INTAKE
FOR APPORTIONMENT WHILE CONFINING THE
RESERVATION UNDER ARTICLE 371-J TO THE 20 PERCENT
SEATS MADE AVAILABLE TO THE STATE GOVERNMENT &
ETC.
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THESE W.Ps. HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 28.10.2022, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, ALOK ARADHE J.,
MADE THE FOLLOWING:
ORDER
The petitioners in W.P.No.20701/2022 and W.P.No.20921/2022 are minority educational institutions established and administered by the Trust. Similarly, petitioner in W.P.No.20917/2022 is an educational institution administered by the Trust. The petitioners are aggrieved by the action of the State Government in drawing up a seat matrix and in notifying the fee structure for admission to various post graduate courses for academic year 2022-23. In order to appreciate the grievance of the petitioners, few relevant facts need mention. For the facility of reference, facts from W.P.No.20701/22 are being referred to.
2. The petitioner is a private unaided linguistic minority institution, which was established and is being administered by Srinivasa Trust primarily for the benefit of members of Telugu linguistic minority community in 8 the State of Karnataka. For the academic year 2022-23, the State Government had prepared draft terms of consensual agreement and shared it with respondent No.4, which is an association of minority professional colleges in the State of Karnataka (hereinafter referred to as 'the association' for short). The association in turn shared it with its members including the petitioner for deliberation and consideration. The petitioner thereupon submitted a representation on 07.07.2022 and 19.09.2022 expressing serious reservations and concerns in respect of various clauses in the draft agreement.
3. However, the Karnataka Examination Authority (hereinafter referred to as 'the authority' for short) issued a notification on 19.09.2022 inviting applications from candidates who had qualified for NEET PG 2022 / NEET MDS - 2022 for grant of admission to post graduate courses for the academic year 2022-23. On 08.10.2022 a calendar of events indicating the seats for PG medical and dental admissions for academic year 9 2022-23 was published. The association entered into a consensual agreement with Government of Karnataka on 04.10.2022 in the matter of regulating admissions and fee structure of post graduate courses in private professional colleges for the academic year 2022-23. Thereafter, on 09.10.2022 seat matrix was published.
4. The petitioner on perusal of seat matrix found that while in respect of several other institutions the overall intake across all PG streams had been factored in for the purposes of such apportionment, keeping in view the fact that the increase of fee structure has been confined only to management quota seats, in case of the petitioner, the distribution of seats is taken up on course wise basis.
5. The petitioner thereupon submitted a representation on 13.10.2022 to the Association to immediately withdraw from Central counseling conducted by the authority in view of discrepancy in seat matrix for admission to Post Graduate Degree / Diploma courses for 10 the academic year 2022-23. In the representation, it was stated that fee being charged / chargeable was Rs.12,48,176/-, Rs.3,12,048/- and Rs.1,56,971/- respectively for clinical, para clinical and pre clinical courses. It was further stated that concession agreed to be given was 20% of the said amount Rs.9,98,540/- Rs.2,49,638/- and Rs.1,25,576/-. However, in the impugned notification, the 20% of concession was worked out to Rs.6,98,280/- Rs.1,74,570 and Rs.87,286/- in respect of clinical, para clinical and pre clinical courses respectively.
6. The petitioner thereafter submitted detailed representations on 14.10.2022 and 16.10.2022. The petitioners filed these writ petitions, in which writ of certiorari has been sought for quashment of impugned seat matrix as well as fee notification issued by the authority. The petitioners in addition seek a writ of mandamus directing the authority to consider petitioners seat distribution list submitted on 07.10.2022. The 11 petitioners also seek a writ of mandamus directing the Government of Karnataka to determine the fee, through a fee fixation committee for the block period 2022 till 2025.
7. Learned Senior counsel for the petitioners in W.P.No.20701/2022 submitted that the petitioner is a minority education institution and in view of amended Article 15(5) of the Constitution of India, no reservation can be imposed on the petitioner. It is further submitted that even though members of the association including the petitioner has been repeatedly asking for constitution of the fee fixation committee, every year at the last moment, the association is pressurized to sign in on the so called consensual agreement without constituting a fee fixation committee to determine the cost involved in imparting quality education. It is also submitted that in respect of several other institutions, overall intake across all PG streams had been factored in for the purpose of such apportionment, however, in case of the petitioner, the distribution of seats is taken up on course wise basis, 12 leading to glaring inequality. It is argued that impugned notifications pertaining to seat matrix and fee structures is in violation of the consensual agreement. It is further argued that impugned notification pertaining to fee structure provides for two to three times of agreed concession of 20% to the government quota admissions and is thus in contravention with clause 4(e) of the consensual agreement. In support of aforesaid submissions, reference has been made to decisions in 'T.M.A. PAI FOUNDATION VS. STATE OF KARNATAKA', (2002) 8 SCC 481, 'ISLAMIC ACADEMY OF EDUCATION AND VS. STATE OF KARNATAKA AND OTHERS', (2003) 6 SCC 697, 'P.A.INAMDAR & ORS VS. STATE OF MAHARASHTRA & ORS', (2005) 6 SCC 537.
8. It is also contended that even in respect of a dispute arising out of a contract to which State is a party the same is open to challenge on the ground of Article 14 specially when bargaining power of both the parties is not the same. In support of aforesaid submissions, reference 13 has been made to decisions in 'SRILEKHA VIDYARTHI (KUMARI) v. STATE OF U.P.', (1991) 1 SCC 212 and VERIGAMTO NAVEEN VS. GOVT OF A.P., (2001) 8 SCC
344.
9. Learned Senior counsel for the petitioner in W.P.No.20917/2022 contended that the seat matrix and impugned fee notification is in contravention with the consensual agreement inasmuch as before fixation of seat matrix, the petitioner has not been consulted as required under Section 4A of the Karnataka Professional Education Institutions (Regulation of Admission and Determination of Fee) Act, 2006 (hereinafter referred to as 'the Act' for short) read with Clause 3(a) and 6 of the Consensual agreement.
10. Learned Senior counsel for the petitioner in W.P.No.20921/2022 while inviting the attention of this court to judgment dated 15.03.2022 passed by a division bench of Kalaburgi bench of this court in W.P.No.200365/2022 submitted that the seat matrix has 14 to be re-worked taking into account the mandate contained in Article 371J of the Constitution of India. It is urged that the steps have to be taken by Government of Karnataka to implement the mandate contained in Section 6 and 7 of the 2006 Act.
11. On the other hand, learned Additional Advocate General submitted that parties have entered into a contract by executing a consensual agreement in terms of Section 4 of the 2006 Act and the aforesaid statutory agreement binds the petitioners. It is urged that the association had entered into consensual agreement with the State Government and the petitioners who are members of the association are bound by the agreement. It is contended that other members of the association did not have any grievance except the petitioners who are three in number. It is also pointed out that association having entered into consensual agreement with the State Government ought to have approached this court. It is further contended that since, 15 the petitioners are bound by the consensual agreement, the operation of the Act is suspended and therefore, reliance of the petitioners on the mandate contained in Section 6 and 7 of the Act demanding fee determination by the Fee Fixation committee is redundant.
12. It is argued that the educational institutions themselves had agreed to the fee structure which is apparent from perusal of annexure-R2. Therefore, the petitioners are bound by the admissions made by them and cannot wriggle out of the same. It is contended that even assuming that a wrong has done by the authorities in apportionment of seats, the petitioners cannot seek the benefit of the said wrong as the same would amount to reverse discrimination. Our attention has also been invited to clause 4(h) of the consensual agreement to contend that to prevent any dispute or litigation in the matter of consensual agreement matter relating to either seat sharing formula or fee structure, the decision of the admission overseeing committee is final. It is therefore, 16 contended that the petitioners should approach the admission overseeing committee for redressal of their grievance.
13. Learned Senior counsel for the Association while supporting the case of petitioners contended that in view of Section 6 and 7 of 2006 Act, the issue pertaining to fixation of fee has to be taken up by the fee fixation committee. It is also pointed out that despite the direction issued by this court in the order dated 13.03.2017 passed by division bench of this court in W.P.No.5105/2017 and other connected matters, the fee has not been fixed by the fee regulatory committee. It is also urged that the association was compelled to enter into consensual agreement dated 04.10.2022 and fixation of fee has been made in a arbitrary manner.
14. By way of rejoinder, learned Senior counsel for the petitioners have submitted that consensual agreement is not a contract and certainly is not a commercial contact to contend exclusion of judicial 17 review. Attention of this court has also been invited to para 12 of the rejoinder and it is contended that Annexure R2 is a document which is from college portal of Association website, that was intended to indicate the sanctioned intake of the association and the fee structure proposed under respective heads of NRI quota and other quota. It is pointed out that columns of fee under government and private seats were automatically generated and filled up by the computer without an option to correct the same. It is also pointed out that it is the fees for NRI and other category of admission, which was left blank and which was required to be filled up by college management and have been accordingly filled up.
15. It is submitted that the agreement suffers from a mistake apparent on the face of the record insofar as it pertains to fixation of fee and therefore, needs to be judicially reviewed and corrected. It is further submitted that petitioners seek parity of treatment based on assurance held out in consensual agreement. The denial 18 of fee hike for government quota seats is arbitrary and therefore, the question of reverse discrimination does not arise. It is also urged that fixation of fee is made every year and each fixation of fee gives rise to a fresh cause of action and merely because the petitioners have not questioned the fixation of fee in previous years, the same does not debar them from questioning the fee this year.
16. We have considered the rival submissions made on both sides and have perused the record. The Hon'ble Supreme Court in its judgment in ISLAMIC ACADEMY OF EDUCATION AND OTHERS Supra sought to regulate admissions to professional courses through two committees, one for overseeing the admissions and the other for approving the fee structure in professional educational institutions pending enactment of appropriate law by the Parliament. The 2006 Act has been enacted with a view to provide for regulation of admission and determination of fee in a professional educational courses in the State of Karnataka and to 19 provide for reservation of seats to persons belonging to scheduled castes and scheduled tribes and other backward classes in professional educational institutions. Section 4A of the Act, which deals with method of admission in case of consensual agreement, Section 6, which deals with constitution of fee regulatory committee and Section 7, which prescribes the factors to be taken into account for determination of fee, read as under:
4A. Method of admission in case of consensual agreement: (1) Notwithstanding anything contained in this Act, in case if the State Government and the association of unaided professional educational institutions whether minority or non-minority agree to enter into a consensual arrangement or agreement with regard to sharing of seats and fixation of fee in respect of such seats in said unaided professional educational institutions, in such year, the admission to such number of seats as agreed upon by the State Government and the private professional educational institutions, shall be done by the Common Entrance Test 20 Committee as Government seats in accordance with such rules as may be prescribed by the Government regarding selection of candidates for admission to Government seats in professional Educational institutions and reservation policy of the State including reservation under Article 371(J). The remaining seats shall be filled through the Common Entrance Test conducted by the association of private professional educational institutions or association of religious and linguistic minority institutions on the basis of merit followed by centralized counseling., in a fair transparent and non exploitative manner as per the consensual agreement subject to such rules as may be prescribed. Subject to the consensual arrangement or agreement the State Government may, by notification, publish the seat matrix to be filled by the State common entrance test committee and the association of private unaided professional educational institutions in the manner as specified below, namely:-
(A) Out of the total intake of under-
graduate Medical or Dental seats, in an 21 unaided non-minority professional educational institutions:-
(i) not less than forty percent of the seats in case of medical seats and not less than thirty five percent of the seats in case of dental seats shall be filled up through Common Entrance Tests conducted by State Common Entrance Test Committee.
(ii) not more than fort percent of the seats in case of medical seats and not more than forty five percent of the seats in case of dental seats shall be filled up by the merit list of common entrance test conducted by the association of non-minority unaided professional educational institutions.
(iii) not more than twenty percent of the seats shall be filled up by Non-resident Indians / Management quota candidates.
(B) Out of the total intake of Post Graduate Medical / Dental seats, in an
unaided non minority professional educational institutions, across the pre-clinical, para clinical and clinical disciplines which shall b done by rotation of disciplines every year in the following manner, namely:-22
(i) not less than thirty three percent of the seats shall be filled up through Common Entrance Test conducted by State Common Entrance Test Committee.
(ii) not more than forty-two percent of the seats shall be filled up by the merit list of Common Entrance Test conducted by the Association of non-minority unaided professional educational institutions; and
(iii) not more than twenty-five percent of the seats shall be filled up by Non-Resident Indians/Management quota candidates.
(C) Out of the total intake of Under-
graduate Medical/Dental seats, in an unaided minority educational institutions:-
(i) not less than twenty-five percent of the seats shall be filled up through Common Entrance Test conducted by State Common Entrance Test Committee;
(ii) not more than fifty-five percent of the seats shall be filled up by the merit list of Common Entrance Test conducted by the Association of minority unaided Professional Educational Institutions; and 23
(iii) not more than twenty percent of the seats shall be filled up by Non-resident Indians/Management quota candidates.
(D) Out of the total intake of Post- graduate Medical/Dental seats, in an unaided minority educational institutions, across the pre-clinical, para-clinical and clinical disciplines which shall be by rotation of disciplines every year:-
(i) not less than twenty percent of the seats shall be filled up through Common Entrance Test conducted by State Common Entrance Test Committee;
(ii) not more than [fifty five percent] of the seats shall be filled up by the merit list of Common Entrance Test conducted by the Association of minority unaided Professional Educational Institutions; and
(iii) not more than [twenty five percent] of the seats shall be filled up by Non-Resident Indians/Management quota candidates.
(E) Out of the total intake of under-
graduate engineering in unaided non-minority professional educational institutions,-
(i) not less than forty-five percent of the seats shall be filled up through Common 24 Entrance Test conducted by State Common Entrance Test Committee;
(ii) not more than thirty percent of the seats shall be filled up by the merit list of Common Entrance Test conducted by the Association of non-minority unaided Professional Educational Institutions; and
(iii) not more than twenty five percent of the seats shall be filled up by Non-Resident Indians/Management quota candidates.
Provided that, in case of minority unaided professional educational institutions while filling institutional seats under clause (C), (D) and (F) not less than sixty-six percent of the seats shall be filled by minority students within the State belonging to minority to which the institution belong of the interse merit in the merit list of common entrance test.
[Provided further that, in case the Government of India or its agency conducts common entrance test to any course of professional education the centralized counseling for allotment of seats shall be conducted by such agency as may be prescribed.
25
Provided also that, not less than thirty percent of the institutional seats shall be filled by Karnataka Students and if sufficient number of Karnataka students are not available such seats may be filled by others.] (2) Notwithstanding anything contained in this Act, in case of the State Government entering into consensual agreement under sub- section (2), the fee for admission to Government seats and in private unaided professional educational institutional seats shall be at such rate with such concessions or Scholarship by the Institutions as agreed upon by such institutions and the Government in the Consensual Agreement.
Provided that the State Government and individual institution can also enter into consensual agreement with mutually acceptable conditions.
Provided further that any consensual agreement that has entered into between the State Government and the Association of private professional educational institutions and any notification issued or any consequential action taken by the State Government for the Academic Year 2015-16 26 before the commencement of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) (Amendment) Act, 2015 shall be deemed to be valid and effective as if they have been done or taken by the State Government in accordance with this Act.
6. Fee Regulatory Committee.- (1) There shall be a Committee called the Fee Regulatory Committee for determination of the fee for admission to the professional educational courses in private unaided institutions consisting of,- (a) a retired Judge of High Court of Karnataka nominated by the Chief Justice of the High Court of Karnataka - Chairperson (b) a representative of either the Medical Council of India or the All India Council for Technical Education, as the case may be depending on the course of study - Member
(c) a person of repute nominated by the Chairperson - Member (d) a Chartered Accountant of repute nominated by the Chairperson - Member (e) the Secretaries to Government in charge of Medical or Higher 27 Education, as the case may be depending on the course of study - Member Secretary (2) The Fee Regulatory Committee shall have power to,- (i) require each professional educational institution to place before the Committee the proposed fee structure of such institution with all relevant documents and books of accounts for scrutiny well in advance of the commencement of the academic year i.e., not later than 31st December of the previous academic year; (ii) verify whether the fee proposed by each institution is justified and it does not amount to profiteering or charging of capitation fee; (iii) approve the fee structure or determine some other fee which can be charged by the institution. (3) The Fee Regulatory Committee shall have the power to regulate its own procedure in all matters arising out of the discharge of its functions, and shall, for the purpose of making any inquiry under this Act, have all the powers of a Civil Court under the Code of Civil Procedure, 1908 while trying a suit, in 28 respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any witness and examining him on oath; (b) the discovery and production of any document; (c) the reception of evidence on affidavits; (d) the issuing of any commission for the examination of witness. (4) The fee determined by the Committee shall be binding on the professional educational institution for a period of three years. At the end of the said period the institution would be at liberty to apply for revision. The fee so determined shall be applicable to a candidate who is admitted to an institution in that academic year and shall not be revised till the completion of his course in the said college. No professional educational institution shall collect a fee amounting to more than one year's fee from a candidate. Collecting of more than one year's fee shall be construed as collecting of capitation fee and shall be liable for penalty under the Karnataka Educational 29 Institutions (Prohibition of Capitation Fee) Act, 1984 (Karnataka Act 37 of 1984). (5) No person who is associated with any private aided or unaided professional educational institution shall be eligible for being a member of the Fee Regulatory Committee. (6) Subject to the pleasure of the authority competent to nominate, the term of the office of the nominated members shall be for the period of two years from the date of their nomination and in the case of vacancy arising earlier, for any reason, such vacancy shall be filled for the remainder of the term. The non-official members shall be eligible to draw such rate of sitting fee and Traveling Allowance as may be prescribed. (7) No act or proceeding of the Fee Regulatory Committee shall be deemed to be invalid by the reason merely of any vacancy in, or any defect in the constitution of the committee. (8) A member of the Fee Regulatory Committee shall cease to be so if he performs any act which in the opinion of the State Government is 30 unbecoming of a member of the committee:
Provided that no such member shall be removed from the committee without giving him an opportunity of being heard. (9) The Chairman shall preside over the meeting of the Fee Regulatory Committee and the Committee may adopt its own procedure as it deems fit.
7. Factors for Determination of Fee.- (1) The Fee Regulatory Committee shall determine the fee or fees to be charged by a private aided or unaided professional educational institution affiliated to an University taking into consideration the factors, such as,- (a) the location of the professional educational institution; (b) the nature of professional course; (c) the available infrastructure; (d) the expenditure on administration and maintenance; (e) a reasonable surplus required for the growth and development of the institution (f) any other factors as the Committee may deem fit. (2) No professional educational institution shall collect any fee by whatever 31 name or form called from the candidate for admission to professional educational courses over and above the fee determined by the Fee Regulatory Committee and the fee prescribed by the university concerned. (3) The Fee Regulatory Committee may determine different fees in respect of different courses of professional education being offered at different institutions depending upon the facilities available and for this purpose it may place similarly placed institutions in broad groups:
Provided that the Fee Regulatory Committee may allow a professional educational institution to collect a higher rate of fee from the Non-Resident Indian student for admission. The State Government may prescribe the minimum fee to be collected from the non-resident Indian student and the higher fee so collected over and above the fee determined for other students in that institution shall be utilized for providing concession in fee to candidates belonging to the Scheduled Castes, the Scheduled Tribes 32 and Other Backward Classes. (4) Any complaint of collecting of capitation fee or fee in excess of the fee determined or profiteering by any institution shall be inquired into by the Fee Regulatory Committee which shall, after obtaining the evidence and the explanation of the management concerned, forward appropriate recommendations to the concerned university or the State Government for necessary action. On such recommendation, the State Government may direct the concerned university to levy and collect a fine upto rupees ten lakhs on the management of such professional educational institution and it shall be lawful for the university to levy such fine. The university shall not approve all or any of the admissions made to such institutions in contravention of the provisions of this Act or may withdraw recognition or affiliation to such institution under intimation to the State Government:33
17. Thus from perusal of Section 4A(1) of the Act, it is evident that notwithstanding anything contained in the provisions of the Act, the State Government and association of unaided professional educational institutions are at liberty to enter into consensual agreement with regard to sharing of seats and fixation of fee in respect of such seats in the said unaided professional educational institutions, in such year, the admission to such number of seats as agreed upon by the State Government and the private educational institutions. Thus, under the provisions of the Act, notwithstanding the fact that fee has to be fixed by the fee regulatory committee on the basis of factors to be taken into account under Section 7 of the Act, the State Government has the power to enter into consensual agreement with the association of unaided professional educational institutions. The provisions of Section 4A(1) of the Act overrides the provisions of Section 6 and 7 of the Act.34
18. In exercise of aforesaid power, the State Government has entered into a consensual agreement with the association on 04.10.2022. Clause 3 of the agreement deals with seat sharing, whereas, clause 4 deals with fee structure. Clause 5(h) of the agreement provides that in respect of dispute or litigation in the matter of consensual agreement, the decision of admission overseeing committee shall be final. Clauses 3, 4 and 5 (h) of the agreement read as under:
3. Seat sharing:
a) The Association of Minority
Professional Colleges in Karnataka
members, imparting studies in Post
Graduate Education in medical sciences in their respective institutions, would make available / hand over 20% of seats out of the total intake available, in each of their member - Medical Colleges, to KEA, the designated agency of the Government for conduct of common counseling, for allocation of seats based on merit as per NEET ranking and as per Rules framed for 35 the purpose in accordance with the terms of this agreement. That, it is agreed that the seat sharing and seat matrix between the AMPCK and Governmental Agencies shall be worked out broadly on the basis of grouping of all specialties as clinical, para clinical and pre-clinical respectively by rotation and allocation of seats in respective quota, shall be as per the "seat matrix"
drawn allocating respective seats in various specialties. It is further agreed that, any subsequent addition of seats by fresh sanction / approval or recognition to any institution or reduction in seats sanction shall also be worked out proportionately and, notified in the same proportion in consultation and approval of respective college managements.
b. Out of the total intake of each institution (of 100%), the admission shall be made as per NEET merit as under:
(i) 20% of the intake capacity of each institution shall be surrendered to the Government which are classified as 36 "Government Seats (G)". The Government is at liberty to allot them to dispense social justice providing for reservation of seats for scheduled caste / schedule tribes and other backward classes besides as mandated under Article 371(J) of the Constitution of India.
(ii) After surrendering 20% of the available seats to the Government, the balance 80% shall be sub divided as 55% (providing for private seats as the institutional quota), 15% as NRI seats and 10% as Management seats. In respect of institutions located in Hyderabad-
Karnataka region, 70% of the 55% shall be reserved /earmarked for allotment to the Hyderabad -Karnataka local candidates in terms of reservation in admissions to educational institutions order issued under Article 371(J). Out of the seats reserved for being allotted to the local persons of Hyderabad-Karnataka region, not less than sixty six percent of the seats shall be filled by respective Linguistic / Religious Minority 37 students within the State in respect of institutions conferred with the Minority status by the competent authority. All the allotments shall be based on NEET Ranking subject to the above reservation. In respect of seats earmarked for Hyderabad -
Karnataka region local persons, going vacant the same shall be filled as detailed in 371(J) Orders.
(iii) 15% "NRI seats (N)" of the total intake Medical Colleges shall be filled under NRI quota. These seats shall be allotted the students under NRI quota to cover NRIs which include NRI's children or their wards, OCIs and PIOs categories. In case of seats falling vacant due to non-availability of candidates, these seats can be filled from any other eligible candidates / students as prescribed by the National Medical Commission and the fee for such students also shall be on par with the fees prescribed for NRIs seats.
(iv) For the remaining 10% "Other seats (G)" of the total intake medical 38 colleges the fee structure will be higher as per the fee structure communicated by the respective Private Colleges through the common portal. 10% of the seats shall be filled up under institutional preference / management quota / higher fee quota on the basis of inter se merit among the applicants who are NEET qualified and eligible through common counseling.
c) In view of the making over of 20% of its total available seats in PG courses, the Government of Karnataka, hereby exempts the members of the AMPCK from the obligation, if any of providing for reservations for either SCs, STs or other backward classes separately, since the Government of Karnataka itself is providing for requisite 'reservations', in seats now available to the Government out of aforesaid 20% of seats, in PG courses in the institutions/ colleges of private managements. For 55% 'Private seats (P), the members of AMPCK shall adhere to provisions of Article 371(J) of the 39 Constitution of India mutatis mutandis, in respect of institutions located in Hyderabad
- Karnataka region.
4. Fee Structure a. Although, as per Section 6 of Karnataka Act 8 of 2006, the Fee Regulatory Committee is in existence, the Government of Karnataka specially exempts the members of AMPCK from the operation of Section 7(2) of Act No.8/2006 and in lieu thereof, it is agreed by the parties the fee matrix indicating the tuition fee that would be levied for the PG Medical Courses in respect of AMPCK institutions under various categories, for the academic year 2022-23 shall be as follows: there is no fee hike this year in so far as Government (G) seats are concerned.
However, both Government and AMPCK have agreed for a fee hike of 10% in respect of institutional quota (P) seats are concerned as hereunder:
Summary of tuition fee and percentage of PG seats 40 Category Courses Fee Medical Degree Clinical Rs.6,98,280/-
Government Quota in Para Clinical Rs.1,74,570/-
Private Colleges
20% (G) Pre-Clinical Rs.87,286/-
Medical Degree
Private Seats Clinical Rs.12,48,176/-
55% (P) Para Clinical Rs.3,12,048/-
Pre-Clinical Rs.1,56,971/-
The details of fees component
NRI 15% (N)
wise shall be furnished to the
Other seats State Government in advance.
10% (O)
b. The tuition fee mentioned in the
above table and University fees as
applicable is the fee to be collected by the Counseling authorities during allotment of seats and the respective colleges, which are entitled to collect Hostel and Mess fees and other fees not exceeding Rs.15,000/- per annum, transportation fees if opted by the students may be collected.
c. Apart from this, in case any member Institution is providing skill lab facility of similar facility/facilities, the 41 respective colleges can charge reasonable fees which shall not in any case exceed Rs.30,000/- per annum. However, the fees for above items shall be informed to Government well in advance by the colleges so that the same could be notified in the website and the brochure.
d. It is made clear that none of the covenants under this agreement shall preclude the colleges executing this
agreement from exercising their rights from seeking redressal for their grievances in regard to fixation of fee from any competent authority.
e. The AMPCK considering the request by the State Government have now resolved to extend the same gestures as were extended for previous year, by way of 'scholarship' to Socially and Economically Weaker Sections and others; and participate in social welfare measures/schemes of the Government. Therefore, it is proposed and provided that, for 'all PG Course seats' made over to the 42 Government for grant of admission in accordance with its reservation policy, the members of AMPCK colleges will extend 'the freeships and scholarships by way of fee concessions' of 20% of the fees actually being charged by each of the AMPCK institutions for the current year; by way of scholarships under this Consensual Agreement; out of additional fees receivable from the category of students falling under Clause 3b(iii) and 3b(iv) of this agreement.
f. The students admitted for Post Graduate Courses shall pay the tuition fees at the time of allotment of seats; and or while seeking admission under the allotment as may be prescribed and notified. Fee structure shall be binding on all the students allotted to the respective colleges through common counseling for the 2022-23 batch every year till the completion of their study. In the event of non-payment of fees in terms of the Consensual Agreement by the student, the college management is at liberty to suspend 43 imparting education to such defaulting students. The tuition fees and other fees as notified by the individual institutions shall be paid by the students. The KEA or the concerned authority shall remit the fee collected to the respective institutions within 3 months of the receipt of the same, failing which KEA shall pass on the due to the institution along with simple interest (Bank rate of Interest fixed by RBI).
f. All financial dues (inclusive of fees, deposits, all such other charges) payable by the students to the college shall be published in the college website.
g. The students under NRI and other quota shall furnish bank guarantees for the balance fees at the time of admission or at such period of time granted by the college. Non-furnishing of the bank guarantee within the stipulated period would result in cancellation of admission or suspension of classes till the furnishing of the Bank Guarantee in favour of the colleges.
44
5. Modalities for Admission:
(h). To prevent any dispute or litigation in the matter of Consensual Agreement now being entered in to between the State Government and the AMPCK, relating to either Seat Sharing Formula and/ or Fee Structure for the batch of students being admitted for the academic year 2022-23 through KEA and or, any other issues connected there with it, the decision of the Admission Overseeing Committee shall be final with regard to admission process.
19. Thus, it is evident that Section 4(A)(1) itself provides for consensual agreement and is a provision which over rides all other provisions in 2006 Act including Section 6 and 7 of the Act. Admittedly, the Association on behalf of petitioners as well have executed a consensual agreement with the State Government on 04.10.2022. The agreement provides for the issues relating to seat matrix and sharing of 45 seats and fixation of fee. The consensual agreement has been executed by the association of private unaided professional educational institutions. The petitioners being members of the association are bound by the agreement. It is pertinent to mention that association has not filed any writ petition challenging the consensual agreement. It is also worth mentioning that petitioners also have not sought for quashment of the consensual agreement.
20. A contract being creature of agreement between the parties binds the parties. The association of which the petitioners are members, has entered into an agreement with the State Government with eyes wide open. It is pertinent to note that the majority of the members of the association have not raised any grievance either about seat matrix or about fixation of fee. It is worth noticing that any alteration in the seat matrix at the instance of the petitioners shall affect the other members of the associations who are not before the 46 court. The material on record also indicates that the consensual agreement consist of similar terms and conditions as were incorporated in previous years also. However, no grievance by the petitioners in previous years was made. The terms of the consensual agreement have remained identical over the last several years. There is no material on record to suggest that any coercion was exercised by the government for entering into consensual agreement. The consensual agreement therefore, binds the petitioners.
21. Clause 4A of the agreement deals with the fee to be charged for the academic year 2022-23. Clause 4A of the agreement provides that there shall be no fee hike for academic session 2022-23 insofar as government seats are concerned. However, the fee has been hiked by 10% in respect of private seats. The fee structure prescribed in the agreement has to be given effect to in its entirety and cannot be read disjunctively to the benefit of the petitioners. The amount of fee has been specified in 47 clear terms in the agreement and the petitioners as stated supra are bound by the agreement.
22. So far as the challenge of the petitioners to the seat matrix is concerned, the aforesaid challenge proceeds on the basis that the consensual agreement contains a promise that the petitioners would be provided substantial number of NRI and management seats. However, from the careful scrutiny of the consensual agreement, we find that no such promise is held out in the consensual agreement. The terms of contract are reduced into writing and the terms of contract alone would determine its interpretation. The petitioners have not been able to demonstrate any violation of terms of consensual agreement while allotment of seats. The petitioners have also failed to make out the ground that allotment of seats has been done in an arbitrary manner. In any case the scope of Judicial review on the issue of allotment of seats is limited and the allotment of seats 48 has been made in accordance with consensual agreement.
23. The contention of the petitioners that merely some other colleges have received slightly higher seats in NRI and management quota, the petitioners should also be given higher number of seats in the said quota cannot be accepted. Merely on the basis of aforesaid reasoning, it cannot be inferred that there is an element of discrimination or arbitrariness, therefore, the provisions of Article 14 of the Constitution of India have been violated. The seats under different categories are allotted to the educational institutions every year on rotation basis. From perusal of the relevant extract of the seat matrix, it transpires that petitioners were given more seats in NRI as well as Management quota in earlier academic years. The relevant extract pertaining to seat matrix of one of the subjects viz., dermatology is reproduced for the facility of reference: 49
Vydehi Institute of Medical Sciences & 2022-23 2021-22 2020-21 2019-20 Research Centre, Bangalore N Q T N Q T N Q T N Q T G P G P G P G P o o o o 2 5 2 5 2 5 2 5 Subject 1 1 t 1 1 t 1 1 t 1 1 t 0 5 0 5 0 5 0 5 5 0 a 5 0 a 5 0 a 5 0 a % % % % % % % % % % l % % l % % l % % l 1 3 1 5 Dermatology 1 1 2 1 5 1 1 2 1 5 1 2 2 5 Navodaya Medical College, 2022-23 2021-22 2020-21 2019-20 Raichur N Q T N Q T N Q T N Q T G P G P G P G P o o o o 2 5 2 5 2 5 2 5 Subject 1 1 t 1 1 t 1 1 t 1 1 t 0 5 0 5 0 5 0 5 5 0 a 5 0 a 5 0 a 5 0 a % % % % % % % % % % l % % l % % l % % l 1 3 1 1 6 Dermatology 1 1 3 1 6 1 2 2 1 6 1 1 2 2 6 Dr B.R.Ambedkar 2022-23 2021-22 2020-21 2019-20 Medical College, Bangalore N Q T N Q T N Q T N Q T G P G P G P G P o o o o 2 5 2 5 2 5 2 5 Subject 1 1 t 1 1 t 1 1 t 1 1 t 0 5 0 5 0 5 0 5 5 0 a 5 0 a 5 0 a 5 0 a % % % % % % % % % % l % % l % % l % % l 1 4 Dermatology 1 2 1 1 1 1 4 1 1 1 1 4 1 1 1 1 4 Thus, it is evident that the petitioners have got more seats in NRI and management quota in previous years. Merely because they have got less seats in NRI and management quota this year, the petitioners cannot be permitted to make a complaint in this regard in the absence of violation of any statutory right. Neither the provisions of the Act nor the provisions of the consensual 50 agreement incorporate the principle of natural justice.
Therefore, the contention of the petitioners that the petitioners ought to have been consulted before allotment of seats is misconceived and does not deserve acceptance.
24. The impact and effect of the provisions contained in Article 371J on minority educational institutions as well as on the seat matrix was challenged before Kalaburgi bench of this court in W.P.No.200345/2022. A division bench of this court vide order dated 15.03.2022 allowed the writ petition in part and quashed the seat matrix insofar as it is applicable to the petitioner therein. A division bench of this court recorded the findings with regard to the terms of interpretation of Article 371J as well as its effect. Learned Senior counsel for the petitioners in W.P.No.20901/2022 has placed reliance on the observations of division bench of this court, however, suffice it to say that the aforesaid order passed by a division bench o f this court was subject matter of challenge in SLP (C) No.6552- 51 6553/2022 and Hon'ble Supreme court by an order dated 27.04.2022 has stayed the effect and operation of the order passed by the division bench of this court. Therefore, the reliance placed by learned Senior counsel on the findings recorded by division bench of this court in relation to Article 371J of the Constitution of India is of no assistance to the petitioner in the said case. It is also noteworthy that percentage of seats can be agreed upon in terms of Section 4A of the 2006 Act and therefore, an agreement with regard to sharing of seats on any other percentage is also permissible.
25. In the disputes pertaining to counseling, seat sharing, fee structure as well as admission to professional courses, the time is the essence. The consensual agreement was executed on 04.10.2022. The entire process of counseling commenced and the first stage of counseling was completed on 14.10.2022. On the said date W.P.No.20701/2022, (Vydehi Institute of Medical Sciences) was filed and whereas, 52 W.P.No.20917/2022 and W.P.No.20921/2022 were filed on 20.10.2022. In cases of this nature, everyday's delay is crucial as the interests of the students are involved. Therefore, in the facts of the case, we hold that the delay on the part of the petitioners in approaching the court was substantial in nature, which disentitles to them to any discretionary relief under Article 226 of the Constitution of India.
26. The petitioners have sought a writ of mandamus directing the Government of Karnataka to take steps as mandatory in terms of Section 6 and 7 of the 2006 Act to determine the fee to the fee fixation committee for the block period 2022-2025. However, provisions of Section 6 and 7 are subject to provisions of Section 4A(1) of the Act which empowers the government to enter into a consensual agreement. However, with a view to mitigate the grievances of the members of the respondent No.4-Association, we hope and trust that the State Government shall advert to the need of fixation of 53 fee as mandated under Section 6 and 7 of the Act as under the aforesaid provisions the fixation of fee has an element of adjudication.
Accordingly, the petitions are disposed of.
Sd/-
JUDGE Sd/-
JUDGE SS