Kerala Self Financing Dental College vs State Of Kerala on 5 September, 2016

[Cites 44, Cited by 3]

Kerala High Court

Kerala Self Financing Dental College vs State Of Kerala on 5 September, 2016

1.This batch of writ petitions were filed challenging the validity of the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Ordinances (the 'Ordinances', for short) being successive Ordinance Nos. 6, 7 and 14 of 2017 as well as the provisional fixation of admission fee for all such colleges at Rs.5,00,000/- by the Admission and Fee Regulatory Committee constituted thereunder followed by challenge to the validity of the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Act, 2017 being Kerala Act 15 of 2017 (the '2017 Act', for short) enacted to replace a series of the Ordinances aforesaid.

2.We have heard learned Senior Counsel Sri. Sunil Gupta, who led the arguments on behalf of the writ petitioners in respect of the institutions, as also learned Senior Counsel Sri. Kurian George WP(C): 21793/17 & contd. Cases -:2:- Kannanthanam and Sri. K. P. Dandapani, learned counsel Sri. George Poonthottam, Sri. Babu Karukappadath, Sri. George Jacob, Sri. K. M. Firoz, Sri. P. Sanjay, Sri. R. T. Pradeep and Sri. Baby Thomas. We have also heard learned counsel Sri. Santhosh Mathew, who appears on behalf of the students. On behalf of the respondents, the arguments were led by the learned Advocate General. With their consent, all the writ petitions are being disposed of at this stage itself.

3.The primal question that arises for consideration, apart from other subsidiary issues, would be with regard to the functioning and nature of power conferred by the Ordinances and the 2017 Act to fix admission fee to the MBBS/BDS Course in the private unaided Medical Colleges; the power to fix provisional fee and provisional fee fixation as it is. Equally in issue would be the provision in the Ordinances and the Act authorising the Government to enter into any agreement with one or more medical educational institutions aforesaid regarding fee or any such other matters. There are several other issues also which were raised and would be noticed at appropriate stages.

4.It would be appropriate to notice at this stage that initially when the first Ordinance in the series was issued on WP(C): 21793/17 & contd. Cases -:3:- 10.04.2017 being Ordinance No.6 of 2017 followed by Ordinance No.7 of 2017 on 01.06.2017, followed by Ordinance No.14 of 2017 on 10.07.2017 with retrospective effect from 01.06.2017, a large number of writ petitions were filed. During the pendency of the writ petitions, on 13.07.2017, the Committee constituted therein passed a blanket order in respect of all private unaided medical colleges, fixing provisional admission fee of Rs.5,00,000/- for all such colleges, which was then challenged. In the chaotic situation created by the State, in respect of admissions to MBBS courses from time- to-time, various interim orders making interim arrangements, to bring order to the chaos created, were passed by this Court and ultimately, when the Kerala Act 15 of 2017 was brought in on 16.09.2017 with effect from 01.06.2017, fresh writ petitions were filed challenging the provisions of the 2017 Act. Why we have used the expression "chaos" as created by the State, is that the State was all along aware that admissions to MBBS Courses had to be completed by 31.08.2017 as per the orders of the Apex Court and the Notification of the Medical Council of India (MCI), which pre-supposes that the students and guardians thereof must know the financial commitment which they were to incur in respect of the Colleges they choose to WP(C): 21793/17 & contd. Cases -:4:- take admission. The situation continues till date and absolute uncertainty still prevails in this regard. The medical colleges themselves do not know what their financial position would be nor do the students know the same.

5.We may briefly indicate the legislative history. After the decisions of the Apex Court starting from T.M.A. Pai Foundation and Others v. State of Karnataka and others [(2002) 8 SCC 481] to P.A. Inamdar and Others v. State of Maharashtra and Others [(2005) 6 SCC 537], the States were directed to form committees for regulating admissions and fee chargeable by each unaided medical colleges. It appears, it is pursuant thereto, various States, including this State, enacted legislations. So far as Kerala is concerned, it 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 with effect from 02.06.2006. There were minor amendments made thereto with effect from 01.06.2007. The Rules framed thereunder being Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of WP(C): 21793/17 & contd. Cases -:5:- Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Rules were made effective from 05.07.2006.

6.Very briefly, the 2006 Act provided for a Committee of six members as Admission Supervisory Committee (Section 4) and a separate Fee Regulatory Committee consisting of five members (Section 6). Section 6(4) thereof, inter alia, provided that the medical colleges place before the Committee the proposed fee structure along with all relevant documents and books of accounts for scrutiny of the Committee, which was then to verify the fee proposed and find whether it was justified and it did not amount to profiteering or charging of capitation fee and approve the fee structure or determine some other fee which can be charged. Section 7 of the 2006 Act, inter alia, provided that the Fee Regulatory Committee should fix the fee to be charged taking into consideration various aspects specified therein. The points to be noted are that it did not provide for quorum of meeting and any ad hoc or interim fee fixation. It clearly gave right to the institutions to fix their fee and the scrutiny was in respect of only profiteering and capitation fee. This Act and the Rules were to apply to all WP(C): 21793/17 & contd. Cases -:6:- professional colleges, including medical colleges. There were no substantial changes by way of amendments.

7.On 02.05.2016 came the decision of the Constitution Bench of the Apex Court in the case of Modern Dental College & Research Centre and Others v. State of Madhya Pradesh and Others [(2016) 7 SCC 353)], which was examining the provisions of a similar Act of the State of Madhya Pradesh enacted in the year 2007 known as the Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhyadesh, 2007, wherein, challenge to various provisions of the Act was negatived by the High Court and the decision was affirmed by the Apex Court. Soon thereafter, on 10.04.2017, Ordinance No. 6 of 2017 was issued in this State. But, apparently, no notification was issued enforcing the provisions of the Ordinance. This was followed by series of Ordinances being Ordinance No. 7 of 2017 on 01.06.2017 and Ordinance No. 14 of 2017 on 10.07.2017, which Ordinance being third in the series was made effective from 01.06.2017. These Ordinances were made specifically for private unaided medical educational institutions alone and to that extent, the provisions of the Ordinances were given an WP(C): 21793/17 & contd. Cases -:7:- over-riding effect over any other law for the time being in force, virtually meaning, the repeal of the 2006 Act in its application to unaided medical institutions. Some of differences to be noted herein was a composite Admission and Fee Regulatory Committee consisting of ten members, out of whom, five were ex-officio bureaucrats, the Chairman being a retired Judge of the Supreme Court or the High Court and then, four other nominated members [Section 3(2)]. The nominated members were to hold office during pleasure of the Government [Section 4(3)].

8.Section 8 of the Ordinance dealt with powers and functions of the Committee and this section changes the entire scheme in relation to fee fixation as was existing under the 2006 Act. It provides that the Committee may require the educational institutions to furnish information, document or record as may be necessary for enabling the Committee to determine the fee that may be charged by the institution in respect of each medical course. Section 11 provide for factors for determining fee and provides that the Committee shall determine the fee to be charged in the manner as may be prescribed, considering the factors enumerated therein and there is a proviso which WP(C): 21793/17 & contd. Cases -:8:- says that the Committee shall not fix a fee which would amount to profiteering or commercialisation of education. The decision of the Committee is appealable to the High Court within thirty days (Section 12). Section 15 provides that the provisions of the Ordinances would over-ride any other law on the subject. Section 17 provided that notwithstanding anything contained in the Ordinances or any law for the time being in force, the Government may enter into any agreement with one or more medical educational institutions regarding fee or such other matters.

9.Thus, the salient features of the Ordinances to be noted was, firstly the constitution of such a jumbo Committee of ten with five ex-officio members and five nominated members, the latter being at the pleasure of the Government, including the Chairman being a retired Supreme Court or High Court Judge. The second and more important was, the provision whereby the medical institutions had no right to fix or even propose the fee. The fee fixation had to be entirely done by the Committee. This is a clear departure from the 2006 Act where the institutions were to propose the fee and the Committee was to look into basically the question of profiteering and capitation fee WP(C): 21793/17 & contd. Cases -:9:- as per the series of the Apex Court judgments. Another change to be noted was by virtue of Section 17 wherein, private agreement as between the State and the medical colleges was permissible both in regard to fee or any other matter.

10.It may also be noted that as in the 2006 Act, here, in these Ordinances, there was no provision for provisional fixation of fee. Yet, the fact may be noted here is that on 13.07.2017, virtually two days after the Committee was constituted under Ordinance No. 14 of 2017, which was promulgated on 10.07.2017, the Committee ordered for provisional fixation of fee for all such medical institutions at an even sum of Rs.5,00,000/- each. By this time, there were several writ petitions filed challenging the various provisions of the Ordinances as also the manner in which the Committee was notified and was meeting as also, the jurisdiction to fix provisional fee. At this stage, the State legislature brought about the Kerala Act 15 of 2017 on 16.09.2017, but made effective retrospectively with effect from 01.06.2017, the date when Ordinance No.7 of 2017 (the second ordinance in the series) was promulgated. The difference to be noticed in this Act of 2017 and the Ordinances was that the provision for WP(C): 21793/17 & contd. Cases -:10:- quorum for meeting was stipulated as 'four', as against the strength of the Committee being 'ten' [Section 5(3)]. Another difference to be noticed was that by virtue of Section 8(1)(b), the power to fix fee provisionally was also conferred.

11.The 2017 Act was given an over-riding effect over the 2006 Act, (Section 15). Section 17 dealing with agreement was retained. By virtue of Section 18 of the Act, Ordinance No.14 of 2017 was repealed. Section 19 dealt with validation and, inter alia, provided that the provisional fee fixation, as done by the Committee constituted under the Ordinance No.14 of 2017 on 13.07.2017, shall be deemed to be valid and shall not be called in question before any Court of law for the reason that there was no provision in this behalf in the said Ordinance or there was defect in the procedure for fixing the fee. As noted earlier, fresh writ petitions were filed challenging not only various provisions of the Act, but the Act as a whole also.

12.In respect of almost all the issues, answers have to be found in the series of six judgments of the Apex Court, viz., Unni Krishnan, J.P. and Others v. State of Andhra Pradesh and Others [(1993) 1 SCC 645]; T.M.A. Pai Foundation and Others v. State of Karnataka and others [(2002) 8 SCC WP(C): 21793/17 & contd. Cases -:11:- 481]; Islamic Academy of Education and Another v. State of Karnataka and Others [(2003) 6 SCC 697]; Modern School and Others v. Union of India and Others [(2004) 5 SCC 583]; P.A. Inamdar and Others v. State of Maharashtra and Others [(2005) 6 SCC 537]; and Modern Dental College & Research Centre and Others v. State of Madhya Pradesh and Others [(2016) 7 SCC 353].

13.Basically, the contentions on behalf of the petitioners revolve around the submission that right to establish and run a medical college is an "occupation" within the meaning of Article 19(1)(g) of the Constitution and hence, a fundamental right in all respects. It is further submitted that the role of the State is limited to the extent of regulating the standard of education, regulating, but not fixing the admission fee, so as to exclude any element of profiteering and capitation fee and permitting generation of reasonable surplus for proper functioning of the medical college, and also for regulating admissions strictly on merit basis. Keeping in mind the said principles, as enunciated in the decisions aforesaid, the State's action through the Ordinances and the 2017 Act, virtually conferring the power to fix fee, as distinct from regulating is clearly impermissible. More so, it WP(C): 21793/17 & contd. Cases -:12:- permits the State to enter into an unholy alliance by virtue of private agreements as between medical college and the State in matters of fee fixation and any such other matters, which is impermissible.

14.On the other hand, the learned Advocate General on behalf of the State submits that if the judgments of the Apex Court are read in the correct perspective then, it is the State which is the ultimate arbiter for fixing fee that could be charged by the medical colleges, keeping in view the poor and deprived students of the State. It gives an option to the medical colleges to avoid the rigors of scrutiny of their accounts by approaching the State directly and come to a negotiated settlement with regard to fee and seat matrix, which agreement would provide, as it did for some colleges, a varying fee structure with cross subsidies in interest of the poor and deserving students.

15.The first question inevitably would be with regard to the constitutional right of the private unaided medical colleges to establish the institutions and manage them. This causes no problem and it has been elaborately discussed and set at rest by the Constitution Bench judgment of eleven judges in the case of T.M.A. Pai Foundation (supra). The constitution of WP(C): 21793/17 & contd. Cases -:13:- such a Bench of the Apex Court was necessitated to review the earlier nine Bench judgment in the case of Unni Krishnan (supra). In paragraphs 23, 24, 25 and 26 of the decision in T.M.A. Pai Foundation's case (supra), their Lordships noted in regards to the earlier judgment in the case of Unni Krishnan (supra) as under:

"23. In Unni Krishnan case at p. 687, para 63, while referring to education, it was observed as follows:

"It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from the university is asked on the basis that it is a fundamental right."

(emphasis in original)

24. While the conclusion that "occupation"

comprehends the establishment of educational institutions is correct, the proviso in the aforesaid observation to the effect that this is so provided no recognition is sought from the State or affiliation from the university concerned is, with utmost respect, erroneous. The fundamental right to establish an educational institution cannot be confused with the right to ask for recognition or affiliation. xxx xxxx xxxxx The question of whether there is a fundamental right or not cannot be dependent upon whether it can be made the subject- matter of controls.

25. The establishment and running of an educational institution where a large number of persons WP(C): 21793/17 & contd. Cases -:14:- are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in Article 19(1)(g). "Occupation" would be an activity of a person undertaken as a means of livelihood or a mission in life. The abovequoted observations in Sodan Singh case6 correctly interpret the expression "occupation" in Article 19(1)(g).

26. The right to establish and maintain educational institutions may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognized head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Articles 29(1) and 30(1), have the right to establish and maintain religious and educational institutions. This would allow members belonging to any religious denomination, including the majority religious community, to set up an educational institution. Given this, the phrase "private educational institution" as used in this judgment would include not only those educational institutions set up by secular persons or bodies, but also educational institutions set up by religious denominations; the word "private" is used in contradistinction to government institutions." WP(C): 21793/17 & contd. Cases -:15:-

16.In paragraph 50 of the reports of T.M.A. Pai Foundation's case (supra), this is what their Lordships held:

"The right to establish and administer broadly comprises the following rights:

(a) to admit students;

(b) to set up a reasonable fee structure;

(c) to constitute a governing body;

(d) to appoint staff (teaching and non-teaching);

and

(e) to take action if there is dereliction of duty on the part of any employees."

17.The reason for upsurge in the private institutions being set up is noted in paragraphs 48 and 49 of the reports, which are quoted hereunder:-

"48. Private education is one of the most dynamic and fastest-growing segments of post-secondary education at the turn of the twenty-first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of the Government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number, and are becoming increasingly important in parts of the world that relied almost entirely on the public sector.

49. Not only has demand overwhelmed the ability of the Governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a "private good" that benefits the individual rather than a "public WP(C): 21793/17 & contd. Cases -:16:- good" for society is now widely accepted. The logic of today's economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before."

18.From the aforesaid, the ratio that can be deduced is that the right to establish and administer a medical college, which comprises of admitting students, setting up a reasonable fee structure, constituting a governing body, appointing staff and other ancillary activities would form part of "occupation" within the meaning of Article 19(1)(g) of the Constitution and thus, a fundamental right. All the facets would thus, have a constitutional protection. Of course, this would be subject to the reasonable restrictions which could be imposed by law, in public interest, by the State under Article 19(6). What would be the extent of the State's intrusion by way of reasonable restriction is the next question.

19.In the present case, we are basically concerned with the fee, which is required to be paid by the students to the medical colleges. In the case of Unni Krishnan (supra), the Apex Court took the view that the State not only had the duty, but could also fix the fee. It evolved a varying fee structure akin to cross WP(C): 21793/17 & contd. Cases -:17:- subsidies where the rich must pay for the poor. But, this is what became controversial and necessitated the formation of a Larger Bench of eleven Judges in the case of T.M.A. Pai Foundation (supra). In paragraphs 28 & 29 of the reports of T.M.A. Pai Foundation's case (supra), what was said in the case of Unni Krishnan (supra) was noted. In the case of Unni Krishnan (supra), it was held that such institutions were entitled to charge a fee higher than those charged by Government institutions, but such a fee could not exceed the maximum limit fixed by the State. It was further held that commercialisation of education was not permissible, it was opposed to public policy and Indian tradition and, therefore, charging capitation fee was illegal. It was held in the said decision that such activity can neither be trade or business as trade or business normally connotes activities carried on with profit motive. Education has never been a commerce in this country. It was thus open to the State to constitute a Committee to fix a ceiling on the fee chargeable by such colleges. These propositions were challenged not only by the institutions, but by the Solicitor General appearing on behalf of the Union of India. On these aspects, the Apex Court in T.M.A. Pai Foundation's case (supra) found that the decision in Unni WP(C): 21793/17 & contd. Cases -:18:- Krishnan's case (supra) needs a reconsideration and this is what their Lordships held in paragraph 45 in the case of T.M.A. Pai Foundation (supra) which reads as follows:

"In view of the discussion hereinabove, we hold that the decision in Unni Krishnan case4 insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Governments etc. are overruled."

20.Their Lordships further held as under in paragraphs 54, 55, 56, 57, 69 and 139 of T.M.A. Pai Foundation's case (supra):

"54. The right to establish an education institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixation of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.

55. xxx xxxx xxx But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of WP(C): 21793/17 & contd. Cases -:19:- private unaided institutions and the government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to- day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence. While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged.

56. xxx xxxx xxx. It is no secret that better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the Government, to determine the scale of fee that it can charge from the students. xxx xxxx xxx. In a sense, a prospective student has various options open to him/her where, therefore, normally economic forces have a role to play. The decision on the fee to be charged must necessarily be left to the private WP(C): 21793/17 & contd. Cases -:20:- educational institution that does not seek or is not dependent upon any funds from the Government.

57. We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition "charitable" it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution.

69. In such professional unaided institutions, the management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/university subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers. WP(C): 21793/17 & contd. Cases -:21:-

139. Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g. method of recruitment of teachers, charging of fees and admission of students. They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under Article 30."

21.In paragraph 61, their Lordships have answered eleven questions and pertinent would be Question Nos. 5(c) and 9, which reads as under:

"Q.5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?

Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.

Q.9. Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P. (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/ modification and if yes, what?

WP(C): 21793/17 & contd. Cases -:22:-

A. The scheme framed by this Court in Unni Krishnan case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however amount to profiteering."

22.From this decision, in relation to the fee chargeable by institutions, it is clear that the institutions shall have full functional autonomy to fix the fee, but the State Regulation, in terms of Article 19(6), could be there in relation thereto, but only to the extent of excluding profiteering and capitation fee, but ensuring a reasonable surplus.

23.The next decision in this series is the Islamic Academy of Education's case (supra). As noted in paragraph 6 therein, one of the issues was whether the education institutions are entitled to fix their own fee structure. The answer to the question is found in paragraph 7, the relevant portion of which is quoted hereunder:

"xx xxxx xxx There can be no fixing of a rigid fee structure by the Government. Each institute must have the freedom to fix its own fee structure taking into consideration the need to general funds to run the WP(C): 21793/17 & contd. Cases -:23:- institution and to provide facilities necessary for the benefit of the students. xxx xxxx xxx. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. xxx xxxx xxxx. Each educational institute must place before the Committee, well in advance of the academic year, its proposed fee structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the Committee for their scrutiny. The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. xxx xxxx xxx. The Governments/appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalised and also face the prospect of losing its recognition/affiliation."

24.Here again, it could be seen that the only area of enquiry and action that are permitted to the Government as a part of fee regulation is to ensure that there is no profiteering or charging of capitation fee and nothing more.

WP(C): 21793/17 & contd. Cases -:24:-

25.Now, we come to the case of Modern School (supra) wherein, their Lordships held in paragraphs 14, 15 and 16, the relevant parts thereof, are quoted hereunder:

"14. At the outset, before analysing the provisions of 1973 Act, we may state that it is now well settled by a catena of decisions of this court that in the matter of determination of the fee structure unaided educational institutions exercise a great autonomy as they, like any other citizen carrying on an occupation, are entitled to a reasonable surplus for development of education and expansion of the institution. Such institutions, it has been held, have to plan their investment and expenditure so as to generate profit. What is however, prohibited is commercialisation of education. Hence, we have to strike a balance between autonomy of such institutions and measures to be taken to prevent commercialisation of education. However, in none of the earlier cases, this Court has defined the concept of reasonable surplus, profit, income and yield, which are the terms used in various provisions of the 1973 Act.

15. xxx xxxx xxx. In the said judgment, it was observed (vide para 56) that economic forces have a role to pay in the matter of fee fixation. The institutions should be permitted to make reasonable profits after providing for investment and expenditure. However, capitation fee and profiteering were held to be forbidden. Subject to the above two prohibitory parameters, this Court in T.M.A. Pai Foundation case held that fees to be charged by the unaided educational institutions cannot be regulated. WP(C): 21793/17 & contd. Cases -:25:-

16. xxx xxxx xxx. We are concerned with the first question, namely, whether the educational institutions are entitled to fix their own fee structure. It was held that there could be no rigid fee structure. Each institute must have freedom to fix its own fee structure, after taking into account the need to general funds to run the institution and to provide facilities necessary for the benefit of the students. They must be able to generate surplus which must be used for betterment and growth of that educational institution. The fee structure must be fixed keeping in mind the infrastructure and facilities available, investment made, salaries paid to teachers and staff, future plans for expansion and/or betterment of institution subject to two restrictions, namely, non-profiteering and non-charging of capitation fees. It was held that surplus/profit can be generated but they shall be used for the benefit of that educational institution. It was held that profits/surplus cannot be diverted for any other use or purposes and cannot be used for personal gains or for other business or enterprise."

26.Again, from the above decision, it would be clear that the enquiry of the State into fee structure is limited to two parameters, that is, non-profiteering and non charging of capitation fee and other is while holding that, surplus or profiteering can be generated, but would be used for the benefit of educational institutions.

WP(C): 21793/17 & contd. Cases -:26:-

27.In the case of P.A. Inamdar (supra), the questions have been framed in paragraph 27 where, the questions relevant are Question Nos. 3 and 4, which are quoted hereunder:

"(3) Whether Islamic Academy could have issued guidelines in the matter of regulating the fee payable by the students to the educational institutions?

(4) Can the admission procedure and fee structure be regulated or taken over by the Committee ordered to be constituted by Islamic Academy?"

28.The answers to the Question No.3 are found in paragraphs 139 and 141 which are quoted hereunder:

"139. To set up a reasonable fee structure is also a component of "the right to establish and administer an institution" within the meaning of Article 30(1) of the Constitution, as per the law declared in Pai Foundation. Every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly, or in any form (paras 56 to 58 and 161 [answer to Question 5(c) of Pai Foundation are relevant in this regard).

141. Our answer to Question 3 is that every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering. No capitation fee can be charged. "

With relation to Question No. 4, it is answered in paragraph 149, which reads as under:

WP(C): 21793/17 & contd. Cases -:27:-

"149. However, we would like to sound a note of caution to such Committees. The learned counsel appearing for the petitioners have severely criticised the functioning of some of the Committees so constituted. It was pointed out by citing concrete examples that some of the Committees have indulged in assuming such powers and performing such functions as were never given or intended to be given to them by Islamic Academy. Certain decisions of some of the Committees were subjected to serious criticism by pointing out that the fee structure approved by them was abysmally low which has rendered the functioning of the institutions almost impossible or made the institutions run into losses. In some of the institutions, the teachers have left their jobs and migrated to other institutions as it was not possible for the management to retain talented and highly qualified teachers against the salary permitted by the Committees. Retired High Court Judges heading the Committees are assisted by experts in accounts and management. They also have the benefit of hearing the contending parties. We expect the Committees, so long as they remain functional, to be more sensitive and to act rationally and reasonably with due regard for realities. They should refrain from generalising fee structures and, where needed, should go into accounts, schemes, plans and budgets of an individual institution for the purpose of finding out what would be an ideal and reasonable fee structure for that institution."

29.We may also note what was said in paragraph 129 of P.A. Inamdar's case (supra), is as under:

WP(C): 21793/17 & contd. Cases -:28:-

"129. In Pai Foundation it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees."

30.Next, we would refer to the recent decision of the Apex Court in the case of Modern Dental College & Research Centre (supra). In that case, the legislation of the State of Madhya Pradesh of the year 2007, in relation, inter alia, to the regulation of fee to be charged by medical colleges was challenged. Suffice to say that the judgment is consistent with the earlier judgments and clearly holds that the function of the Committee is only to regulate and fix fee taking into account, affirming the High Court's view, that there should not be any profiteering and commercialisation of education (paragraph 81 of the reports). Unfortunately, the use of the expression "fixation of fee" in the aforesaid decision has been taken too literally by the State here. Learned Advocate General, who would submit that now the Apex Court has permitted the State to fix the fee and not just regulate the fee. Thus, according to WP(C): 21793/17 & contd. Cases -:29:- the learned Advocate General, the Modern Dental College & Research Centre's case (supra) authorises the State to fix the fee in contradiction to regulate the fee and thereby authorises the State to travel beyond the two enquiry points, as had been enumerated repeatedly in the decisions starting from T.M.A. Pai Foundation's case (supra) upto P.A. Inamdar's case (supra).

31.We would raise a caveat first that judgments are not to be read as statutes. We need say no more than to note what was said in paragraph 10, in the case of M/s Amar Nath Om Prakash and Others v. State of Punjab and Others [(1985) 1 SCC 345].

"10. There is one other significant sentence in Sreenivasa General Traders v. State of A.P with which we must express our agreement, It was said: (SCC p. 377, para 27) "With utmost respect, these observations of the learned Judge are not to be read as Euclid's theorems, nor as provisions of a statute. These observations must be read in the context in which they appear."

We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the WP(C): 21793/17 & contd. Cases -:30:- discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton Lord MacDermott observed:

"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge....

In Home Office v. Dorset Yacht Co. Ltd.15 Lord Reid said:

"Lord Atkin's speech16 ... is not to be treated as if it was a statutory definition. It will require qualification in new circumstances."

Megarry, J. in (1971) 1 WLR 1062 observed:

"One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament."

And, in Herrington v. British Railways Board Lord Morris said:

"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

32.The decision in the case of Modern Dental College & Research Centre's (supra) has to be read and understood in the light of the earlier judgments directly on the issue and we find no warrant in departing from those, nor do we find WP(C): 21793/17 & contd. Cases -:31:- anything in the decision of Modern Dental College & Research Centre's case (supra) which either departs from or modifies any of the judgments as earlier noted.

33.As the learned Advocate General vehemently argued that the decision in the case of Modern Dental College & Research Centre (supra) changes the entire scheme authorising the State to take up "fixation of fee", we would like to put the controversy at rest that, this is not the position. The Court in Modern Dental College & Research Centre's case (supra) in no way deviated from the larger Bench proceedings which would be apparent from the following. We would first refer to what was said in the case of Modern Dental College & Research Centre (supra) by the Court in paragraphs 33 and 34, which read as under:

"33. The history of the dispute regarding government control over the functioning of private medical colleges is quite old now but the tug of war continues. There seems to be some conflict of interest between the State Government and the bodies that establish institutions and impart professional medical education to the youth of this country. While on the one hand the State Governments want to control the institutions for socio-political considerations and on the other hand the people who invest, set up and establish WP(C): 21793/17 & contd. Cases -:32:- the institutions have a genuine desire to run and exercise functional control over the institution in the best interest of the students, it cannot be disputed that the State does not enjoy monopoly in the field of imparting medical education and the private medical colleges play a very significant role in this regard. The State lacks funds that is imperative to provide best infrastructure and latest facilities to the students so that they emerge as the best in their respective fields.

34. In the modern age, therefore, particularly after the policy of liberalisation adopted by the State, educational institutions by private bodies are allowed to be established. There is a paradigm shift over from the era of complete government control over education (like other economic and commercial activities) to a situation where private players are allowed to mushroom. But at the same time, regulatory mechanism is provided thereby ensuring that such private institutions work within such regulatory regime. When it comes to education, it is expected that unaided private institutions provide quality education and at the same time they are given "freedom in joints" with minimal Government interference, except what comes under regulatory regime. Though education is now treated as an 'occupation' and, thus, has become a fundamental right guaranteed under Article 19(1) (g) of the Constitution, at the same time shackles are put insofar as this particular occupation is concerned which is termed as "noble".

Therefore, profiteering and commercialisation are not permitted and no capitation fee can be charged." WP(C): 21793/17 & contd. Cases -:33:-

34.We may then notice what was said in paragraphs 71 and 75 of the said decision which read as under:

"71. We may again remind ourselves that though right to establish and manage educational institution is treated as a right to carry on "occupation", which is the fundamental right under Article 19(1)(g) the Court in T.M.A. Pai Foundation had also cautioned such educational institution not to indulge in profiteering or commercialisation. That judgment also completely bars these educational institutions from charging capitation fee. This is considered by the appellants themselves that commercialisation and exploitation is not permissible and the educational institutions are supposed to run on "no profit, no loss basis". No doubt, it was also recognised that the cost of education may vary from institution to institution and in this respect many variable factors may have to be taken into account while fixing the fee. It is also recognised that the educational institutions may charge the fee that would take care of various expenses incurred by these educational institutions plus provision for the expansion of education for future generation. At the same time, unreasonable demand cannot be made from the present students and their parents. For this purpose, only a "reasonable surplus" can be generated.

75. To put it in a nutshell, though the fee can be fixed by the educational institutions and it may vary from institutions to institution depending upon the quality of education provided by each of such institutions, commercialisation is not permissible. In WP(C): 21793/17 & contd. Cases -:34:- order to see that the educational institutions are not indulging in commercialisation and exploitation, the Government is equipped with necessary powers to take regulatory measures and to ensure that these educational institutions keep playing vital and pivotal role to spread education and not to make money. So much so, the Court was categorical in holding that when it comes to the notice of the Government that a particular institution was charging fee or other charges which are excessive, it has a right to issue directions to such an institution to reduce the same."

35.We may then refer to the relevant parts of paragraph 81 of the said decision wherein, apart from laying down the law, their Lordships have quoted from the High Court judgment from which an appeal was being considered and we would quote from there as well as referred to paragraph 81. This is what the Court said:

"81. xx xxx xx. It is also significant to note that the Committee which is set up for this purpose, namely, Admission and Fee Regulatory Committee, is discharging only a regulatory function. The fee which a particular educational institution seeks to charge from its students has to be suggested by the said educational institution itself. The Committee is empowered with a purpose to satisfy itself that the fee proposed by the educational institution did not amount to profiteering or commercialisation of education and was based on intelligible factors mentioned in Section 9(1) of the 2007 WP(C): 21793/17 & contd. Cases -:35:- Act. In our view, therefore, it is only a regulatory measure and does not take away the powers of the educational institution to fix their own fee. xx xxx xxx"

36.In paragraph 81 itself, referring to the judgment of the High Court and paragraph 42 thereof, this is what their Lordships have stated with approval:

"xxx xxxx xxx. Each professional educational institution, therefore, can furnish information with regard to the fees that it proposes to charge from the candidates seeking admission taking into account all the cost components, the reasonable surplus required for growth and development and other factors relevant to impart professional education as mentioned in section 9(1) of the 2007 Act and the function of the committee is only to find out, after giving due opportunity of being heard to the institution as provided in Section 9(2) of the 2007 Act whether the fees proposed by the institution to be charged to the student are based on the factors mentioned in Section 9(1) of the 2007 Act and did not amount to profiteering and commercialisation of the education.

xx xxx xxxx xxx The expression "fixation of fees" in Section 4(1) of the 2007 Act means that the fee to be charged from candidates seeking admission in the private professional educational institution did not vary from student to student and also remained fixed for a certain period as mentioned in Section 4(8) of the 2007 Act.

xxx xxxx xxx WP(C): 21793/17 & contd. Cases -:36:- The provisions in Sections 4(1), 4(8) and 9 of the 2007 Act in substance empower the Committee to be only satisfied that the fee proposed by a private professional educational institution did not amount to profiteering or commercialisation of education and was based on the factors mentioned in Section 9(1) of the 2007 Act."

37.From these, it would be absolutely clear that what is said in the case of Modern Dental College & Research Centre (supra) is nothing new nor departure from what was said in the earlier decisions. What is ultimately held is that even as per the provisions of the Madhya Pradesh Act of 2007, it would be for the college to propose the fee structure based on various factors as enumerated in the Act itself. This is the aspect of financial autonomy, but this would be subject to regulation of the State only to find out, after giving opportunity to the college, whether and to what extent the proposed fee would amount to profiteering and commercialisation. The concept of "fixation of fee" is explained clearly as meaning fee fixed for all students without variation and fixed for certain period. At the cost of repetition, we may mention, it is not fixation of fee per se, as authorised to the Government, which is a wrong notion, for, the authority of the State through the Committee is only to regulate the fee for the limited purpose. WP(C): 21793/17 & contd. Cases -:37:-

38.At this stage we may note, as we would demonstrate also later while dealing with the statutes in question, that in this State there was an Act made known as 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 (the '2006 Act', for short) and the Rules framed thereunder which dealt with professional colleges including private unaided medical colleges in relation to matters of regulating fee. But, this has been virtually repealed and replaced by the Ordinances and 2017 Act, in respect of private unaided medical colleges. The reason appears to be apparent from the submission of the learned Advocate General that earlier consistent with the judgments of the Apex Court starting from T.M.A. Pai Foundation's case (supra) upto P.A. Inamdar's case (supra), the provision for regulation of fee was made with two objectives in mind. But now, when the judgment of the Modern Dental College & Research Centre's case (supra) came, the State assumed jurisdiction not only to regulate the fee, but to fix the fee itself. This is one of the grounds for challenging the validity of the Ordinances and the 2017 Act.

WP(C): 21793/17 & contd. Cases -:38:-

39.From the aforesaid series of decisions of the Apex Court what we understand is that such institutions being unaided private medical colleges have their fundamental rights under Article 19 (1)(g) of the Constitution as they are carrying on an "occupation" and that right includes right to fix fee which can only be regulated in terms of Article 19(6) to the extent of authorising the State to check for profiteering and capitation fee alone while ensuring reasonable profit/surplus. The judgments don't authorise the State to either control the occupation of these colleges much less fix the fee. In other words, the State cannot, through the Committee set up under the Ordinances or the Act, start dictating to the institutions as to what would be reasonable expense and what would be an unreasonable expense; what expense can be allowed to be part of the fee and what expense cannot be a part of the fee. The State before disallowing whole or part of any expense would have to point out the reasons that why allowing such an expense would be profiteering or allowing capitation fee.

40.In our view, whether an institution considers an expense as legitimate for the proper conduct of the college and education, it has to be left to them and cannot be controlled, reduced or disallowed by the Committee under the garb of fee fixation WP(C): 21793/17 & contd. Cases -:39:- and/or regulation. The Apex Court has repeatedly held that there has to be financial autonomy, which is an integral part of the right to set up an institution and thus, an integral part of the right under Article 19(1)(g) of the Constitution. Viewed in this light, we do not find any warrant for reading the decision in the Modern Dental College & Research Centre's case (supra) as in anyway, now authorising or giving the State a carte blanche to fix the fee. While the decisions have consistently held that the enquiry, as authorised, would be limited to two points of profiteering and capitation fee, what is suggested by the learned Advocate General is just the opposite as to what, in the opinion of the Committee, should be reasonable fee. We cannot accept this and will show how the provisions of the 2006 Act have been changed in the Ordinances and the 2017 Act, to achieve, what is submitted by the learned Advocate General and what is not there in the decisions aforesaid, rather the provisions of the Ordinances and the 2017 Act if so read, as suggested by the learned Advocate General, are in teeth of the judgments.

41.In fairness to the learned Advocate General, we must note his stand. It was his submission that, while the Apex Court in the decision of Modern Dental College & Research Centre's WP(C): 21793/17 & contd. Cases -:40:- (supra) now fully authorised the State to fix the fee as it thought reasonable, in respect of admissions to private unaided medical colleges, which was, as noted above, is the inspiration for series of Ordinances and the 2017 Act that followed in the State. The Apex Court had upheld the provisions of the Madhya Pradesh Act of 2007, which is similar to the Ordinances and Kerala Act 15 of 2017, and that being so, it was futile to challenge the validity of the 2017 Act or any provision thereof. Having considered the matter, we do not think that the submission of the learned Advocate General is correct.

42.Very briefly stated, the Kerala Act of 2006 follows the principles as laid down in the series of judgments starting from T.M.A. Pai Foundation's case (supra) to P.A. Inamdar's case (supra) where emphasis was on the financial autonomy of such colleges to fix their admission fee and the scrutiny by the State under its regulatory power was then limited to finding out and deleting financial consideration amounting to profiteering and capitation fee, but leaving a reasonable surplus. Whereas, in the present Ordinance and the Act 15 of 2017, this has been given a total go by. The provisions would show that now it would be Admission-cum-Fee Regulatory Committee that would WP(C): 21793/17 & contd. Cases -:41:- fix the fee taking into consideration various aspects, which fee as fixed by the Committee would not allow profiteering or charging of capitation fee. The whole concept of financial autonomy of the medical colleges and its primacy has been deleted. The entire focus has been changed, virtually restoring the position which prevailed after the decision of Unni Krishnan (supra) and was disapproved in T.M.A. Pai Foundation's case (supra).

43.As noted earlier, there is similarity in the provisions of the Ordinances and the 2017 Act of this State with the Madhya Pradesh Act of 2007, but even so, the Apex Court in Modern Dental College & Research Centre (supra), while dealing with the 2007 Madhya Pradesh Act has clearly held that the financial autonomy of colleges have to be maintained and the State Committee will have a limited role to scrutinize the fee proposed for its exploitations alone. It virtually read down and explained the provisions of the Madhya Pradesh Act of 2007 accordingly, as earlier noticed.

44.In order to appreciate this, we may first take a comparative look to the provisions of 2006 Act and the 2017 Act in respect of fee fixation. The first difference we would like to note is that WP(C): 21793/17 & contd. Cases -:42:- the constitution of Fee Regulatory Committee itself under Section 6(1) of the 2006 Act. Under the said Act, the Fee Regulatory Committee consisted of five persons:

(a) A retired Judge of the Supreme Court or the High Court as the Chairperson,

(b) The Secretary to the Government in the Health or Higher Education Department,

(c) A chartered accountant nominated by the Government in consultation with the Chairperson,

(d) A representative of either Medical Council of India or AICTE depending on the course and,

(e) Educational expert nominated by the Government in consultation with the Chairperson.

45.Now under the Ordinance and the 2017 Act, the Committee consisted of ten persons, the first being a retired Judge of the Supreme Court of High Court as the Chairperson, then five ex- officio members being Secretary of the Higher Education Department, Secretary of the Health and Family Welfare Department, Secretary of Law Department and Director, Directorate of Medical Education and Commissioner of Entrance Examinations. Then, we have a representative of Medical Council of India nominated by the Government, an educational expert nominated by the Government, an educational expert belonging to Scheduled Caste/Scheduled Tribe community nominated by the Government, and a chartered accountant WP(C): 21793/17 & contd. Cases -:43:- nominated by the Government. Thus seen, under the 2017 Act, the Chairman has no say in the appointments and out of ten members, five are ex-officio Government officials, four are nominated by the Government and one is a retired Supreme Court or High Court Judge as the Chairperson. This is contained in Section 3(2) of the 2017 Act. In addition thereto, by virtue of Section 5(3) of the 2017 Act, a quorum of four has been provided for a meeting of the Committee which was not there in the 2006 Act. As the Committee therein was having five members, only one of them was a Government servant and the others were appointed by the Government in consultation with the Chairperson who was to be a retired Judge of the Supreme Court or High Court. We will deal with the effect of this quorum, as provided, at an appropriate stage and whether it could at all be so provided considering the nature of the functions of the Committee.

46.We may now consider the powers and functions of the Fee Regulatory Committee under the two enactments. Under the 2006 Act, Section 6(4) reads as follows:

"6. Fee Regulatory Committee.-

xxx xxxxx xxxxx (4) The Fee Regulatory Committee shall have power to:-- WP(C): 21793/17 & contd. Cases -:44:-

(a) require each unaided professional college or institution to place before the Committee the proposed fee structure of such college or 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;

(b) verify whether the fee proposed by each college or institution is justified and it does not amount to profiteering or charging of capitation fee;

(c) approve the fee structure or determine some other fee which can be charged by the college or institution."

Whereas, when we come to the 2017 Act, the powers and functions of the Committee is contained in Section 8 and the relevant provision is Section 8(1)(a), which is quoted hereunder:

"8. Powers and functions of the committee.--(1) The Committee shall exercise the following powers and performing the following functions, namely:--

               (a)    require    a   private medical  educational

        institution     to    furnish  within a  specified  date,

information, documents or records as may be necessary for enabling the Committee to determine the fee that may be charged by the institution in respect of each medical course, and the fee so determined by the Committee shall be valid for such period as may be notified by the Government."

WP(C): 21793/17 & contd. Cases -:45:-

In addition thereto, clause (b) of Section 8(1) provides for provisional fixation of fee and it reads as under:

"(b) If the committee is of the belief that for any reason delay will occur in determination of final fee, it may be fix a provisional fee and publish and within ninety days from the date of publication of order fixing such fee final fee shall be fixed and the same shall be notified as specified in clause (a);"

47.It may also be noted that it is for the first time under the 2017 Act that power to provisionally fix fee [Section 8(1)(b)] has been introduced, which has also been challenged and we will discuss this separately at an appropriate stage.

48.We may note the submission of Mr. Sunil Gupta, the learned Senior Counsel appearing on behalf of the writ petitioners. His submission would be that keeping in mind what was stated in the series of judgments, as noted above, the change in the statutory provisions, as brought out by the Ordinances and the 2017 Act from that of the 2006 Act, is wholly unauthorised and contrary to the judgments. His submission would be that whereas the 2006 Act clearly predicated that the private unaided institutions would propose the fee and the State would scrutinize it for profiteering and eliminating capitation fee though leaving a reasonable surplus, the Ordinances and the WP(C): 21793/17 & contd. Cases -:46:- 2017 Act straight away authorises the State to fix the fee and, therefore, the Ordinances and the 2017 Act, being contrary to the judgments, have to be struck down.

49.We have considered the argument and we do not think that those provisions i.e., Section 8(1)(a) of the 2017 Act and similar provisions of the Ordinances can be held to be ultra vires, for, the provisions of Sections 4(1) and 4(8) of the Madhya Pradesh Act of 2007 were similar to that of the 2017 Act, the validity of which has been upheld in the case of Modern Dental College & Research Centre (supra). But, while saying so, we must note, as quoted above itself, that the Apex Court and the Madhya Pradesh High Court clearly pointed out notwithstanding the language as contained in the statutory provisions, the function of the regulatory body remains the same, i.e., the fee structure has to be proposed by the institution and the scrutiny by the Committee would only be for the purpose of seeing that it is not exploitative nor does it contain any element of capitation fee.

50.The power to "fix the fee" cannot be read as controlling of what fee should be charged. But, it means to fix the fee without variation from student to student for a fixed period. WP(C): 21793/17 & contd. Cases -:47:- While fixing the fee by the regulatory body, what can be excluded is only profiteering or capitation fee element. We thus find that on such a reading of the provisions and the powers conferred on the Fee Fixation Committee and with such limitations, the provisions cannot be held to be either unreasonable or ultra vires. We would like to add that the regulatory body is not there to control the occupation and whenever it makes a recommendation to refuse an expense, it would have to give reason as to why it considers the expense to be either profiteering or having element of capitation fee. It cannot be left to the ipsi dixit of the Regulatory Committee to disallow expenses which the institution considers legitimate for its sustenance and growth. We must keep in mind that the reasons to be given are important, because, now under the Act, provision has been made for a judicial review by way of a statutory appeal to the High Court within thirty days of the final fixation order, by virtue of Section 12 of the Act and unless reasons are given in support of the dis-allowances, they cannot be judged in appeal. It is a decision by a quasi judicial body and must be a speaking order. The regulatory committee thus has to honour the financial autonomy of the institutions, their desire to offer good education with best teachers, best and modern WP(C): 21793/17 & contd. Cases -:48:- equipments and facilities, all of which costs money. The source of money to such institutions is out of the fee alone. The regulatory committee cannot fix the fee considering what the students can pay or what the students should be made to pay, for, professional education cannot be made cheap at the expense of the institutions which are not only to flourish, but provide quality education also. We, therefore, find that if these principles are kept in mind while implementing the provisions of the regulatory committee, then there is nothing wrong with the provisions. This balances the rights of the institution and the restrictions by the regulatory authority.

51.We would also note that the submissions of the learned Advocate General is totally misplaced that by authorising "fixation of fee" the Apex Court, in Modern Dental College & Research Centre's case (supra) left it to the Committee to decide what the free structure should be, for, that is what was done by the Apex Court in the case of Unni Krishnan (supra) and was over-ruled as unconstitutional in T.M.A. Pai Foundation's case (supra) which is the judgment of eleven Judge Bench of the Apex Court and that view could not be and in fact has not been departed from in any judgment, much less WP(C): 21793/17 & contd. Cases -:49:- in Modern Dental College & Research Centre's case (supra). Any fee fixation done by the Committee in a manner other than what we have indicated above would immediately have to be re-visited by the Committee and orders will have to passed accordingly.

52.At the cost of repetition, because this tug of war is unending, we would summarise by saying that even though there is a duty on the State to provide quality professional education, as it cannot be denied that the country needs skilled Doctors, but since the State is unable to provide quality education for various reasons, the gap has to be filled up by the private unaided institutions. If they are not allowed to fix the fee, subject to it not being exploitative, then there would not be any incentive for the private unaided institutions to come up and those who have already ventured in the field would wither away or start compromising on the quality of education, if not start adopting unethical and inappropriate means to charge money, which is not desirable for anyone, much less this country.

53.Again, at the cost of repetition, we may say that under the garb of fee fixation, the Committee cannot start regulating the WP(C): 21793/17 & contd. Cases -:50:- occupation and administration of the medical colleges itself. It is not open to the Committee to start considering whether an expense claimed by the institution as reasonable and necessary, is not appropriate, for, that would be impeaching upon the financial autonomy of the institution. What is appropriate, reasonable and required for the proper functioning of an institution is a matter to be decided by the management of the institution and the only scope available to the Committee is to see that the fee, which is in proportion to the expenses claimed, does not amount to profiteering or have a capitation fee element in it. All the decisions of the Apex Court, including the decision in Modern Dental College & Research Centre's case (supra), have clearly held that even a reasonable surplus has to be allowed to be generated, the colleges have to gather funds for improvements, for adding infrastructure and equipments, which are by any means not cheap. These are matters which cannot be considered by the Committee to be irrelevant for a surplus. They are not to act as super Income-tax Officers. Regulation may be necessary and permissible for a purpose, but over regulation is bad and has always proved counter productive.

WP(C): 21793/17 & contd. Cases -:51:-

54.We may also add here that, for the purpose of scrutinising the accounts, the Committee can formulate a policy of directing the colleges to submit audited accounts for the last three previous years, as submitted to the income-tax authorities, showing clearly various breakups and with the help of the Chartered Accountant, who appropriately should have been a Cost Accountant, analyse the figures for profiteering and the capitation fee aspect. But certainly, the Committee cannot go into the desirability or appropriateness of the expenses incurred as per its own notion or standards.

55.Now, we may consider the provisions with regard to the provisional fixation of fee, as has been introduced in the 2017 Act by virtue of Section 8(1)(b) quoted above. It may be noted that neither under the 2006 Act nor under the Ordinances was there a provision for fixation of fee provisionally. As noted earlier, after the third Ordinance came within two days of the constitution of the Committee, a blanket order for all private unaided medical colleges was issued by the Committee on 13.07.2017, provisionally fixing the fee for admissions at Rs.5,00,000/-. It is on the basis of this provisional fixation, counselling was conducted and students and guardians were required to make choices not knowing what the final fixation and final liability would be. This WP(C): 21793/17 & contd. Cases -:52:- becomes more significant when we find that fee once fixed has to be paid by the students/guardians year after year for a period of five years of this course which is a substantial commitment. The colleges themselves are left in doldrum, not knowing what they are to ultimately receive. By nature of the power conferred on the Committee and the purpose for which it is conferred, petitioners are right in asserting that there cannot be any authorisation for provisional fixation of fee and such authorisation would clearly be ultra vires the aim and the object of fixation of fee itself.

56.In our view, the reasons are clear. The colleges are to issue prospectus stating the annual fee that a student of a particular batch would be liable to pay at the time of admission. This would be the fee for that batch, for the entire period of the course, which ordinarily would be five years. It is upon knowing this, that the students/guardians would make a informed decision as to which college to join considering their own financial status. It is natural that the fee from college-to-college would vary and that too substantially depending upon their social commitment (minority colleges themselves subsidising the overall fee), the infrastructural facilities provided, the age and life of the infrastructure available etc. If the fee varies, but WP(C): 21793/17 & contd. Cases -:53:- the students do not know what it would be ultimately, can it be said that they can take a valid informed decision at the time of counselling? What would be the plight of a student, who, on the basis of the provisional fee of Rs.5,00,000/- per annum, takes admission in a college only to be told that the fee fixed finally, after admissions have closed, would be Rs.10,00,000/-. This would mean a financial commitment of Rs.50,00,000/- for the entire course. Whereas, there may be another college where, even with best of facilities, the college being old and its asset being highly depreciated, the fee finally fixed is Rs.6,00,000/-, meaning the commitment would only be Rs.30,00,000/-. Naturally the student would prefer at the time of counselling, merit permitting, to decline admission in college 'A' and move to college 'B' making it more affordable to him. It is for this reason, we hold that in the scheme of things and the purpose for which the power is conferred, there is no place for provisional fixation of fee. Another evil that we perceive is that, once provisional fixation is made at Rs.5,00,000/-, the Committee itself would be under pressure to maintain the final fixation as close to it as possible and, to achieve that, it would disallow expenses claimed without much justification, much less reason or rationale, forcing the institutions to go into litigations and thus, WP(C): 21793/17 & contd. Cases -:54:- introduce great uncertainty, both for the institution and the students, which is absolutely undesirable.

57.In fairness to the learned Advocate General, we must note his defence to such a provision. On facts he submits that the institutions delay in furnishing information, because of which, the Committee is not able to decide the fee structure before the prospectus is finally sanctioned to be issued. The admission schedule is statutorily fixed which cannot be varied either by the State or the institutions. Therefore, there must be necessarily an ancillary power to fix provisional fee. Legally, he submits with reference to various judgments that all Courts and authorities have ancillary power to effectuate the final power conferred on it and as such, there is nothing wrong in conferring the Committee with the power to provisionally fix the fee. We are not impressed.

58.Firstly, the facts in the case would show that when the third Ordinance was promulgated on 10.07.2017 and brought in force retrospectively, with effect from 01.06.2017, the Committee therein was only notified around 10.07.2017. We are sure that everyone was aware of the admission schedule. This Committee, within two days, without consultation with any WP(C): 21793/17 & contd. Cases -:55:- of the institutions, suo motu fixed the provisional fee for all institutions, across the board, at Rs.5,00,000/-. This was done on 13.07.2017. The counselling had to start and admissions had to be finalised by 31st of September 2017.

59.In view of the various provisions of the 2017 Act, including the Ordinances, the Committee was clothed with the power of a civil court to summon witnesses, records etc. It never took any such steps earlier, either under the 2006 Act or the Ordinances. For its failure or inability, the Committee cannot jeopardise the future of the institution or the students and arrogate to itself the powers, which conceptually, it does not have. The judgments, as cited by the learned Advocate General, need not be noted, for, they relate to a different situation altogether and are clearly not applicable to such a situation. Considering the nature of function and the duties cast on the Committee, it does not predicate provisional fixation. We would accordingly hold that the said provision for fixation of provisional fee is clearly ultra vires and cannot be sustained. It is for the Committee to find ways and act efficiently to discharge its statutory duty within a time frame as per the requirement of the law.

WP(C): 21793/17 & contd. Cases -:56:-

60.However, the provision of Section 8(1)(b) being clearly ultra vires, the action already taken thereunder would be fait accompli and the Committee would be required to fix final fee, for each institution forthwith, if not already done and they shall not venture to fix provisional fee for the institutions in future.

61.We would now refer to the next issue with regard to the Committee, its functioning and the provision in relation to quorum [Section 5(3) of the 2017 Act]. So far as the constitution of the Committee is concerned, as we have already noted above, that under the 2006 Act, the Committee consisted of five members. The Chairperson was to be a retired Judge of the Supreme Court or the High Court, then there was to be Secretary of the Government in the Health or Higher Education Department and then three to be nominated by the Government in consultation with the Chairperson. Now, it has been made into a jumbo ten member Admission-cum-Fee Regulatory Committee under Section 3(2) of the 2017 Act, out of which, five are ex- officio Government officials; one the Chairperson, is a retired Supreme Court or High Court judge and the rest four are nominated by the Government without the consultation of the Chairperson. We failed to see the purpose of such a jumbo WP(C): 21793/17 & contd. Cases -:57:- committee, for, they have to conduct repeated long sittings and deliberation; they have to peruse the records of each individual institution; they have to hear each individual institution before coming to a just decision. The suggestion of the Committee came from the judgment of the Constitution Bench in Islamic Academy of Education's case (supra) and it has to be found in paragraph 7 thereof. The judgment clearly recommended that the strength of the Committee shall not exceed five. This is what their Lordships said in paragraph 7 of the said judgment:

"As, at present, there are statutes/regulations which govern the fixation of fees and as this Court has not yet considered the validity of those statutes/regulations, we direct that in order to give effect to the judgment in T.M.A. Pai case the respective State Governments/ concerned authority shall set up, in each State, a committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative of the Medical Council of India (in short "MCI") or the All India Council for Technical Education (in short "AICTE"), depending on the type of institution, shall also be a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the committee. The Committee should be free to nominate/co-opt another independent person of WP(C): 21793/17 & contd. Cases -:58:- repute, so that the total number of members of the Committee shall not exceed five."

62.We must note that this was a direction under Article 142 of the Constitution till State legislations are framed, but nevertheless, they are valuable guidelines for effective functioning of the Committee. Another thing we must keep in mind is that this Committee has to function as a quasi judicial body, as has been clearly indicated in paragraph 150 of the judgment of the Supreme Court in P.A. Inamdar's case (supra), which reads as follows:

"150. We make it clear that in case of any individual institution, if any of the Committees is found to have exceeded its powers by unduly interfering in the administrative and financial matters of the unaided private professional institutions, the decision of the Committee being quasi-judicial in nature, would always be subject to judicial review."

63.The decisions of the Committee are appealable to the High Court under Section 12 of the Act. Now, if we see the constitution of the Committee, it can hardly be termed as an independent impartial Committee, for, unlike under the 2006 Act where the nominations were in consultation with the Chairperson, who was a retired Supreme Court or High Court WP(C): 21793/17 & contd. Cases -:59:- Judge, here, there are five ex-officio senior Government servants and four persons nominated at the Will of the Government, in which nomination, the Chairperson, the retired Supreme Court or High Court Judge has no say.

64.We would only note that at the Bar, there was various allegations and assertions made as against the nominated members and the consideration with which they were nominated. We would not like to go into that question, for, we hold that the Government is repository of responsible power and the Committee must have the confidence of the people. The Committee cannot be made to look to be biased by virtue of its selection, nomination and appointment. It is not only that the Committee has to decide what the students pay, but that also has a reflection upon the finances of the institution and their survival. The rights have to be balanced and it is only possible when the committee appears to be free and independent and not to toe the line of the Government in power. We expect the Government would act accordingly with a sense of responsibility in the matter.

65.Now, coming to the question of quorum, as fixed by Section 5 (3) quoted above. The justification is that the Committee being WP(C): 21793/17 & contd. Cases -:60:- large, all members cannot be present during all times, especially when, there are five senior bureaucrats in the Committee and therefore, as accepted as a principle in laws of meetings, quorum can legitimately be provided. We are unable to accept this.

66.The laws of meeting provide for quorum, because they deal with "meeting". The essence is when a body meets, deliberates and decides in one sitting, then a quorum can be and has to be provided. It makes sense. That is the law. But, when a body has to meet over a long period and deliberate on different dates, in respect of different aspects, and then, pursuant to the deliberations over period of time and series of hearings, they have to come to a decision, then the principle would be that one who hears must decide, for, as noted above, this is a quasi judicial body and those, who hear and participate in the deliberations, are the persons who would decide. But, if there is a quorum fixed, which is four in the present case, out of a Committee of ten members, then what we have is that on day one, while considering the case of an institution, some four members of the ten members' Committee would hear. On the next day, there would be some other four members who would WP(C): 21793/17 & contd. Cases -:61:- hear and the next day, there would be another four who would hear, and it would go on for a long period. Ultimately, on the last day, some other four would hear and the order would be passed by any four, which would be taken to be the order of the ten members' Committee. Surely, in such a situation, quorum cannot decide the matter. It is to be the member, who initiate the discussions/deliberations, who have to carry on with it and conclude the matter with their orders. It is not a casual responsibility given. It is not a decision that is taken in one meeting alone. Therefore, the principle of providing quorum of a meeting would not apply to such a quasi judicial body, for, what happened on one day may not be known to the members deliberating on the same matter in continuation on the next day. There would be no consistency in deliberations and its directions. We, therefore, find that the provisions of Section 5(3) are clearly ultra vires the powers and functions of the Committee, they are clearly arbitrary, violative of Article 14 of the Constitution, and cannot thus be sustained.

67.In this connection, we may also note one thing. We questioned the learned Advocate General as to what was the necessity of having such a large Committee of ten persons having five senior bureaucrats therein, instead of having a WP(C): 21793/17 & contd. Cases -:62:- small committee of not more than five as recommended by the Supreme Court and noticed earlier. The answer was that this Committee is a Committee, both for the purpose of regulating admissions and fixation of fee. In our view, if that would be the purpose, the regulation of admissions being totally different from regulation of fee, it would be appropriate to have two separate committees. May be some of the members are common or it may be a similar committee, for, the two committees work at different time zones. The Fee Fixation Regulatory Committee functions and its function is supposed to end long before actual admission process starts. The fee fixation has to be at the time when the prospectus of institutions are to be finalised and approved by the State. It is only thereafter, the function of the Admission Regulatory Committee is supposed to start. Therefore, there is no gain saying that a large committee is first to be constituted of ten members and then they may work separately with a quorum of four. We may also point out here that, while the function of the Fee Regulatory Committee is quasi judicial, the function of Admission Regulatory Committee is more administrative. Their aims, objects and obligations are different and, therefore, they cannot be clubbed in the manner in which it has been done. WP(C): 21793/17 & contd. Cases -:63:- The fall out will be that any decision of the Fee Regulatory Committee where the same set of members do not deliberate right through in respect of any particular college, such decision would clearly be vitiated.

68.While on this, we may answer the submission made by the learned Advocate General, who points out, that, for instance in the High Court, the number of Judges is quite large and for different matters, Benches of different quorums are provided and there is nothing wrong in it. In our view, the example is ill- conceived, in as much as, it is never the case in such judicial proceedings that if the quorum of the jurisdiction is two, then different sets of two Judges would hear the matter at the stage of final hearing and a different set would deliver the judgment. It is always the quorum that takes up the matter for final hearing, however prolonged the hearing may be, to decide the case.

69.At this stage, we may usefully refer to the judgment of a seven Judge Constitution Bench of the Apex Court in The United Commercial Bank Ltd. v. Their Workmen [AIR 1951 SC 230] wherein, while dealing with the adjudicatory process, their Lordships have clearly held that if the Tribunal which adjudicates on a dispute and those quasi judicial work is WP(C): 21793/17 & contd. Cases -:64:- admittedly of a joint character and responsibility, it leads to the irresistible conclusion that in the absence of one or more members, the rest are not competent to act as a Tribunal at all (paragraph 8 of the reports).

70.It was then urged, with reference to Section 11 of the 2017 Act quoted hereunder, that the determination of fee has to be done "in the manner as may be prescribed" upon considerations named therein. Section 11 reads as under:

"11. Factors for determination of fee.- (1) The Committee shall determine the fee that may be charged by a private medical educational institution in the manner as may be prescribed, considering the following facts, namely:--

(a) the location of the private medical educational institution;

(b) the nature of the medical course;

(c) the cost of land and building;

(d) the available infrastructure, teaching and non-

teaching staff and other equipments;

(e) the expenditure on administration and maintenance of the educational institution;

(f) a reasonable surplus required for growth and development of the medical institution;

(g) any other relevant factor.

(2) The Committee shall, before fixing any fee, give the institution a reasonable opportunity of being heard;

WP(C): 21793/17 & contd. Cases -:65:- Provided that no such fee as may be fixed by the Committee shall amount to profiteering or commercialization of education."

In addition thereto, we may also refer to Section 16(1)(d) also in this regard which reads as under:

"16. Power to make rules.- (1) The Government may, by notification in the Gazette, make rules for carrying out the provisions of this Act.

xx xxxx xxxx

(d) the manner of determination of fee to be charged by a private medical educational institution from the candidate under sub-section (1) of section 11;"

71.The phrase "in the manner as may be prescribed", with reference to Section 2(o), would mean prescribed by the Rules and admittedly, till date, no Rules have been prescribed. Therefore the submission is, in the absence of the Rules, there cannot be a determination of fee. We are unable to accept this submission on behalf of the writ petitioners, for, we must keep in mind that the expression used is "in the manner as may be prescribed". This phraseology is of importance. It is not imperative for the Rules to be framed. They have to be followed, if they are so framed. But, in absence thereof, the considerations being in Section 11 itself, the exercise of determination cannot be faulted. The phrase is not 'in the WP(C): 21793/17 & contd. Cases -:66:- manner as prescribed'. There is a distinction between the two phrases. In the cases of "in the manner as may be prescribed", the Rules are optional. But, where the phrase is "in the manner prescribed", the Rules are imperative. If this distinction is kept in mind, then the submission of the petitioners cannot be accepted.

72.In this connection, we may refer to the decision of the Apex Court in Orissa State (Prevention & Control of Pollution) Board v. Orient Paper Mills and Another [(2003) 10 SCC 421] and we can do no better than to quote paragraph 13 thereof, which reads as under:

"13. Thus, in case manner is not prescribed under the rules, there is no obligation or requirement to follow any, except whatever the provision itself provides viz. Section 19 in the instant case which is also complete in itself even without any manner being prescribed as indicated shortly before to read the provision omitting this part "in such manner as may be prescribed". Merely by absence of rules, the State would not be divested of its powers to notify in the Official Gazette any area declaring it to be an air pollution control area. In case, however the rules have been framed prescribing the manner, undoubtedly, the declaration must be in accordance with such rules."

WP(C): 21793/17 & contd. Cases -:67:-

73.Thus, even in the absence of Rules as contemplated under Section 11 of the Act, the Committee can proceed to decide the matters within its jurisdiction. But, once the Rules are framed, it would have to act in accordance with the Rules and the considerations contained therein. It cannot be said that in the absence of Rules, the power of the Committee to determine the fee is lost. We decide accordingly.

74.Now, we may come to the challenge with regard to Section 17 of the 2017 Act in relation to agreement. Section 17 reads thus:

"17. Agreement between Government and medical educational institutions.--Notwithstanding anything contained in the foregoing provisions or in any other law, the Government may enter into any agreement with one or more private medical educational institutions regarding fee or any such other matter."

75.Section 17 has been attacked by the institutions and students alike. It is submitted that it authorises the Government to come to an unholy alliance with the institutions. There are absolutely no guidelines, no restrictions, no limitations and no policy discernible. On behalf of the institutions, it is submitted that it is only a provision made to ensure that to avoid the lengthy process of scrutiny of accounts by the Fee Regulatory Committee and to deal with the members of the Committee WP(C): 21793/17 & contd. Cases -:68:- and their views, an escape is provided to come to the Government directly and offer a golden handshake whereby, giving a complete go by to the considerations for fee fixation and the judgments in relation thereto, agreements can be entered. The use of the non obstante clause "notwithstanding...." is significant.

76.Sri. Santhosh Mathew, learned counsel who appeared for the students, brought to the notice of the Court how, even for the present academic session, some of the institutions, instead of facing the Committee, entered into a negotiated settlement and agreement with the Government. The agreements clearly show the varying fee structure for the same batch in the same institution and that was agreed to, whereby about 35% of the students, even though admitted on merit basis under the so- called management quota, were to pay a fee of about Rs.11,00,000/- annually. The management quota was fixed at 50% of the available admissions. The balance 15% was allocated to NRIs., who were to pay about Rs.14,00,000/-. These high fees were then used to subsidise the 50% Government quota whereby, about 10% seats were reserved for BPL candidates, who were to pay only Rs.25,000/- annually. WP(C): 21793/17 & contd. Cases -:69:- Then there were Scheduled Castes/Scheduled Tribes and OBC, who were required to pay only about Rs.1,50,000/- annually and the balance of about 30% remaining from the 50% Government quota, who were also to be selected on merit, were to pay about Rs.2,50,000/-. This was clearly an agreement, in conflict with the decision of T.M.A. Pai Foundation's case (supra) where such cross subsidies, as was earlier provided in Unni Krishnan's case (supra) was clearly held to be unconstitutional and the said decision was overruled.

77.We may notice an arbitrary result of this agreement to the prejudice of the students, in as much as, a meritorious unreserved category student may end up getting a seat in the Government quota and pay Rs.2,50,000/- as fee. But, a less meritorious unreserved category student may fall within the 35% management quota and would have to pay Rs.11,00,000/-. If such a provision for agreement is allowed to exist, then, in absence of any guidelines, the power being totally unguided and uncertain, abuse is inherent therein. It may be noted that on seeing the challenge which was made to this provision, two institutions, who had entered into an agreement with the Government, then backed out. WP(C): 21793/17 & contd. Cases -:70:-

78.In fairness to the learned Advocate General, we must note his submission in this regard. He submits, with reference to paragraph 68 of the decision in T.M.A. Pai Foundation's case (supra) and paragraph 110 of the decision in P.A. Inamdar's case (supra) as well as paragraph 128 thereof, that consensual agreements are allowed. We may usefully refer to what is stated in paragraph 128 of the decision in P.A. Inamdar's case (supra), which reads as under:

"128. We make it clear that the observations in Pai Foundation in para 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State."

79.A reference to the above would show that all that their Lordships are referring to, in relation to a consensual agreement, is with regard to fixation of percentage of quota between different types of students depending upon their background. It deals with seat matrix only and not fee. It does not anywhere refer to an consensual agreement with regard to fee, for, the judgments are consistent that there has to be a uniform fee structure. We will come and notice the exception thereto. The concept of cross subsidy, as was enunciated in WP(C): 21793/17 & contd. Cases -:71:- the decision in Unni Krishnan's case (supra) was expressly noticed and over-ruled in T.M.A. Pai Foundation's case (supra). That can't by re-introduced through back door by Section 17 of Act 2017. This unbridled power is dangerous for its implication, even otherwise. It opens a way to unholy alliance and a golden handshake with the Government as there are no limitations, no conditions, no control and no judicial review. We, therefore, cannot accept the contention of the learned Advocate General, for, such agreements are not sanctified by the judgments in any way, especially in relation to fee structure. Section 17 as a whole of the 2017 Act is clearly ultra vires, being arbitrary and in conflict with binding precedents and thus, in conflict with Articles 14 and 19(1)(g) of the Constitution.

80.While on this, we may note a limited aspect of cross subsidy, as has been permitted by the Apex Court. First, the Courts have held that admissions have to be purely on merit basis with fixed admission fee. "Fixed" means fixed for all students of the same batch of the same institution uniformly. But, the exception thereto is to be found in paragraph 131 in the case of P.A. Inamdar (supra) and followed thereafter wherein, it clearly said that there can be a 15% reservation for NRIs. where, higher amounts can be charged towards fees. The WP(C): 21793/17 & contd. Cases -:72:- higher figure or the enhancement made for such NRI students, who are also selected on merit, would be then used to subsidise the economically weaker section of the society. Thus, what was allowed as cross subsidy, was only to the extent of taxing the NRIs. for the benefit of the poorer section of the society and not a general subsidy in the manner in which, it is being done purporting to be under Section 17 of the 2017 State Act.

81.While on this, we would again note another aspect. It is open to the Government to fix quotas reserving seats for deserving categories of students, especially in view of Article 15A as now introduced in the Constitution. But while doing so, one thing has to be kept in mind, that any seat that is not filled up from the available category, cannot be left vacant or carried over to the next academic session. If a particular category is not available, then it may be rotated to another reserved category and if they are also not available, then it has to be opened for the general category. But, in no case, any seat can be permitted to be left unfulfilled. Even while fixing these quotas, the admissions have to be strictly according to merits from amongst the quota. The consensual agreement, as allowed by the Apex Court, is only to this extent of seat matrix and not beyond that. WP(C): 21793/17 & contd. Cases -:73:-

82.We may now, next notice the challenge to that part of the Act, as contained in Section 19, which purports to validate the provisional fee as fixed by the Committee on 13.07.2017 of about Rs.5,00,000/-. As noticed earlier, no sooner a Committee was formed under the third Ordinance being Ordinance No. 14 of 2017, which was notified on 10.07.2017 with effect from 01.06.2017 and that Committee on 13.07.2017 fixed the provisional admission fee of Rs.5,00,000/- in respect of each medical colleges without any consultation with the colleges. Neither under the 2006 Act nor under the Ordinances, there was any provision for provisional fixation of fee. This was challenged immediately. Pending challenge, Act 15 of 2017 was passed and this incorporated the provision of repeal and saving [Section 18] and validation [Section 19]. Sections 18 and 19 are quoted hereunder:

"18. Repeal and saving.- (1) The Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Ordinance, 2017 (14 of 2017) is hereby repealed.

(2) Notwithstanding such repeal, anything done or deemed to have been done or any action taken or deemed to have been taken under the said Ordinance shall be deemed to have been done or taken under this Act.

WP(C): 21793/17 & contd. Cases -:74:-

19. Validation.-- Notwithstanding anything contained in the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Ordinance, 2017 (14 of 2017) or in any rules made thereunder or in any judgment, decree or order of any court, the proceedings of the Admission and Fee Regulatory Committee fixing the fee provisionally and the fee so fixed as per order numbers AFRC 50/17/BDS/SFMC, AFRC 50/17/MBBS/ SFMC dated the 13th day of July, 2017, shall be deemed to be valid till the fee is fixed finally subject to the provisions of this Act and the same shall not be called in question before any court of law for the reason that there was no provision in this behalf in the said Ordinance or there was defect in the procedure fixing the fee."

83.It is submitted that when, on 13.07.2017, the Fee Regulatory Committee fixed the provisional fee, it was Ordinance No. 14 of 2017 (the third ordinance) that was in force having been promulgated on 10.07.2017. It did not provide for provisional fixation of fee. As has earlier been held in this judgment, there could not have been such a provision and such a provision as introduced in the 2017 Act [Section 8(1)(b)] has already been declared ultra vires. On the basis of this, it is submitted on behalf of the petitioners that there being no power or authority to fix provisional fee, when it was so done, the validation thereof simpliciter, is not a valid legislative exercise. It is only WP(C): 21793/17 & contd. Cases -:75:- an invalid declaration that notwithstanding absence of power the same cannot be questioned in any court of law. It does not rectify the defect for its invalidity. On the other hand, the learned Advocate General refers to Section 18(2) which clearly states that if this section is read with Section 19, then the action taken under the Ordinance is validated.

84.We have given our anxious consideration to the submissions. The first thing to be noted is that Section 18(2) has no application in as much as, it clearly refers to anything done or deemed to have been done or action taken or deemed to have been taken under the said Ordinance. As has already been shown, there was no such provision in the Ordinance and, therefore, it cannot be said that the provisional fee fixation was done or deemed to be done under the Ordinance. If that be so, it cannot be deemed to be done under the Act as well. Once Section 18(2) is out of the way, then what we find in Section 19 is a declaration of validation of an unauthorised action without curing the defect. It is well settled that where an Act is held by Court to be invalid, the legislatures have the authority to validate the said Act, but the pre-condition is that the defect, as pointed out, must be cured by legal fiction and not by WP(C): 21793/17 & contd. Cases -:76:- declaration of its validity, for, such a declaration would be a legislative over-ruling of a judicial decision, which is impermissible. Section 19 of the Act thus, cannot be used to validate the invalidly fixed provisional fee.

85.As has been held by the Apex Court in the case of B. Shama Rao v. Union Territory of Pondicherry (AIR 1967 SC 1480) and in particular, in paragraphs 10, 13 and 14 thereof, the provisional fixation of fee was a still born child and without providing legitimacy to the birth at the time of its birth, it cannot be declared by legislation to be valid. The defect pointed out had to be cured which, in the present case, has not been done.

86.We may note the objection taken by the institutions as to the interventions made on behalf of the students in respect of matters in relation to fee fixation. It is rightly submitted that the role of the students comes only after fee is fixed, for, it is only after fee is fixed that prospectus is issued and it is only after prospectus is issued, the students figure and give their options. Therefore, the rights of the students come much later. They cannot thus intervene to challenge the fee fixation, which has already been made before they enter the scene. There is WP(C): 21793/17 & contd. Cases -:77:- some substance in the submission on behalf of the institutions as also on behalf of the State.

87.We may also refer to the recent decision of the Apex Court in the case of Satish Kumar Gupta and others v. State of Haryana and others [(2017) 4 SCC 760]. The question which arose was as to the right of post acquisition allottees of land and whether they could challenge the cost of acquisition itself. The Court clearly held that the right of the post acquisition allottees arises only after acquisition has been made and as such, they cannot be termed as persons interested in the acquisition, for, they did not exist when acquisition was being made. Similarly here, when the fee is fixed or is in the process of being fixed, there are no students, for, their right arises only when they are qualified for admission much later. They are non-parties and as such, they cannot challenge the fee fixed. They lack locus to do so.

88.We may now come to the last part of the controversy. The institutions and more so the students, have serious grievance in the manner in which the State has proceeded through the Committee to take decision in the matter of fee fixation. The absolute chaos that was committed has to be avoided. Even WP(C): 21793/17 & contd. Cases -:78:- though the 2017 Act provides for fee fixation through the Committee and for regulating admissions as well, it does not provide for the time schedule. It is because of this and the failure on the part of the Committee to fix final fee, at an earlier appropriate date, that adhocism also comes in by way of provisional fixation. We, therefore, intend to deal with this aspect of fixing time schedule.

89.As early as in T.M.A. Pai Foundation's case (supra), the Apex Court had held that for admission to any professional institution, merit must play an important role and conduct of a Common Entrance Test (CET) by Government agencies would be an ideal mode for dermination of merit, in the case of professional colleges. To effectuate this direction, the Medical Council of India had introduced a common entrance test known as the National Eligibility Entrance Test (NEET). In Sankalp Charitable Trust and Another v. Union of India [(2016) 7 SCC 487], the Supreme Court also held that admission to MBBS courses throughout the country are to be held on the basis of NEET. There is thus a certain uniformity in the admission process all over India. The detailed schedule as regards the conduct of the entrance examination, declaration of results, dates on which first and second counselling are to be held, WP(C): 21793/17 & contd. Cases -:79:- commencement of academic session, and the last date upto which students can be admitted/joined against vacancies arising due to any reason has been laid down by the Medical Council of India. This schedule has been endorsed by the Apex Court in Ashish Ranjan & others v. Union of India & others [(2016) 11 SCC 225]. Unless modified by the Apex Court, these dates are to be strictly followed.

90.In view of the above, the determination of fee by the Fee Regulatory Authority assumes great importance as the Entrance Test is normally held in the month of May and results are published in the month of June. Even at the time of issuance of notification by the State, the seat matrix and the fee charged are to be mentioned in the notification. This has been held so by the Apex Court in Dar-Us-Slam Educational Trust v. M.C.I & Others (order dated 9.5.2017 in Writ Petition (Civil) No. 267/2007). In the above order, the Apex Court had issued certain peremptory directions as an interim measure and it was ordered that the said arrangement shall continue to apply to all Colleges except in the State of Tamil Nadu, Andhra Pradesh and Jammu and Kashmir. We shall extract the same as some of the directions issued by the Apex Court concern the fee to be determined by the committee and also the amount that need to WP(C): 21793/17 & contd. Cases -:80:- be deposited by the students at the time of attending the counselling session. The directions are as follows:-

"i) Common Counselling for admission to All India Quota seats in Government Medical Colleges shall be conducted by the DGHS. The counselling conducted by DGHS will also include Deemed Universities as they have an All India character. The Deemed Universities mentioned above shall also include Deemed Universities run by religious and linguistic minorities.

ii) Common Counselling for State Quota seats in Government as well as Private Medical Colleges including colleges/institutions run by religious and linguistic minorities affiliated to State Universities shall be conducted by the State Government or the authority designated by the State Government. The notification issued by the State Government intimating the students about the Common Counselling must specify that at the time of counselling the students belonging to minority community will be required to furnish the necessary proof regarding their minority status and submit in writing about their willingness to take admission in the concerned minority college/institution.

iii) As per the judgment of this Hon'ble Court in the case of Ashish Ranjan vs. Union of India & Ors. [(2016) 11 SCC 225], there shall be only two rounds of common counselling each conducted by the DGHS/State Government or authority designated by the State Government for All India Quota (including Deemed University) and State Quota seats respectively.

iv) After the second round of counselling for All India Quota seats, the students who take admission in All India Quota seats should not be allowed/permitted to vacate the seats. This would ensure that very few seats are reverted to the State Quota and also All India Quota seats are filed by students from the all India merit list only. The students who take admission and secure admission in Deemed Universities pursuant to the second round of counselling conducted by the DGHS shall not be eligible to participate in any other counselling.

WP(C): 21793/17 & contd. Cases -:81:-

v) The notification to be issued by the DGHS and the State Government notifying Common Counselling should also provide the fee structure of Deemed Universities and Private Medical Colleges. The DGHS/ State Government should also obtain the consent of the students regarding their willingness to pay the fees provided in the notification and take admission in the Deemed Universities and Private Medical Colleges.

vi) The students who secure admission in MBBS course pursuant to the Common Counselling conducted by the State Government, at the time of common counselling itself, should be made to deposit with the admission/counselling committee the Demand Draft towards the fees payable to the institution College/ University. The admission/counselling committee shall forthwith forward the Demand Draft to the respective Institution/Colleges/University. The necessity for including the above-mentioned requirement has arisen as it has been time and again noticed that when students report to the college after the counselling they are refused admission by the colleges on some pretext or the other and it is shown by the college as if the student never reported to the college for admission. If the Demand Draft is deposited by the admission/ counselling committee then there would be no scope for colleges to refuse admission to any student.

vii) In order to ascertain the number of seats that still remain vacant after the counselling the State Government or the authority designated by the State Government shall conduct manual counselling for allotment of students. After the completion counseling, the State Government shall determine the number of seats that are still vacant and thereafter shall forward a list of students in order of merit, equaling to ten times the number of vacant seats to the medical college so that in case of any stray vacancy arising in any college the said seat may be filled up from the said list. Viii)In the applications submitted by the students belonging to the minority community they should confirm their minority status as well as the fact that they fulfill other conditions which may be prescribed by the minority institutions. Accordingly, the DGHS as well as the State WP(C): 21793/17 & contd. Cases -:82:- Government shall prepare a separate list of minority students seeking admissions in the respective minority institutions in order of merit. The competent authorities of the College present during counselling shall check/verify the minority status of the candidate. This arrangement is only meant for the State Quota.

ix) During the common counselling conducted by the State Government, the representatives of the medical colleges particularly representative of minority institutions should be a part of the admission/ counselling committee as the case may be.

x) Common counselling conducted by the DGHS/State Government will not in any manner affect the rights of minority institutions to admit students of their respective minority community. The minority quota seats, if any, in institutions run by minorities will be filled up by minority students only. Therefore, the rights of minority institutions are fully protected.

Needless to say this arrangement will not apply to the States of Andhra Pradesh, Telangana and Jammu & Kashmir. As far as the other States are concerned, needless to say, this arrangement shall apply to all the colleges unless this Court has passed any different or separate order."

91.Direction No.(v) clearly stipulates that the notification issued by the DGHS and the State Government notifying Common Counselling must specify the fee structure of Deemed Universities and Private Medical Colleges. In other words, the determination and fixation of the fee structure should be completed well in advance so that the exact fee that the student will have to pay for securing admission to a specific college is known to the student or his guardian at the time of issuance of the notification by the state. Direction No.(vi) WP(C): 21793/17 & contd. Cases -:83:- requires the students who secure admission in MBBS Course to deposit at the time of common counselling with the Admission/ Counselling Committee the demand draft towards the fee payable to the Institution.

92.That being the position, if admissions are to be completed according to the above schedule, the whole process of determination/fixation of fee has to be commenced well in advance. In P.A. Inamdar's case (supra), the Apex Court had held that the fee is to be fixed on the proposal of the institution supported by documents and the procedure of fee finalization should commence at least 6 months in advance of the commencement of the academic year. The chaos during the academic year 2017-18 was because of the uncertainty that prevailed even during the final stage of the admission process. As held in P.A. Inamdar's case (supra), the controlling of the fee fixation machinery is necessarily to be done before it is charged or otherwise, it would prove meaningless to the students for whom it is suggested. There are about 18 Private Self Financing Medical Colleges in the State and 19 Private Self Financing Dental Colleges as on 2017. While determining the fee under Section 11 of the Act factors such as the location of WP(C): 21793/17 & contd. Cases -:84:- the Private Medical Educational Institution, the nature of the medical course, cost of land and building, available infrastructure, teaching and non-teaching staff and other requirements, expenditure on administration and maintenance, reasonable surplus required for growth and development of the institution and any other relevant factor are to be taken note of by the Fee Regulatory Committee. Unless the fee is determined sufficiently early, it will be impossible for the DGHS and the State Government at the time of notifying the Common Counselling the fee structure of Deemed Universities and Private Medical Colleges.

93.We, therefore, deem it appropriate that specific directions are to be issued to safeguard the interest of the students so that the whole procedure can be streamlined and even on the date of issuance of notification for the purpose of counselling the students have a clear idea as to the fee that they should bear for each and every institution.

94.In order to effectuate the said purpose, we deem it fit to fix the following schedule.

a) The proposed fee with supporting documents are to be submitted by the Institution covered under WP(C): 21793/17 & contd. Cases -:85:- Act 15 of 2017 with the constituted Committee on or before the 15th of November of the previous academic year. The supporting documents may include the detailed financial statement of the Institution consisting of the audited balance sheet, profit and loss account and receipt-and- payment account for the past three years and such other materials relied on by the institution to arrive at the proposed fee.

b) The Fee Regulatory Authority shall conduct a preliminary scrutiny of the materials submitted by the Institution and may also request for any additional information. This shall be on or before the 15th of December.

c) On or before the 31st of December, all the requisite information required for arriving at the proposed fee shall be submitted before the Fee Regulatory Committee by the Institution.

d) The Committee shall afford an opportunity to the Institution and shall pass final orders determining the fee on or before the 15th of February.

e) If the Institution is aggrieved by the final order of the Committee they may prefer appeal before the High Court within 30 days from the date of order as provided under section 12 of the Act.

f) On filing of such appeal, if any, taking note of the urgency of the matter, necessary orders shall be WP(C): 21793/17 & contd. Cases -:86:- passed, so that the time schedule as fixed by the Apex Court is not disturbed. If, for any reason final orders cannot be passed on or before 15th of April, some interim arrangements can be made to safeguard the interest of the students as well as the Institution by the Court.

g) As per the MCI schedule as endorsed by the Apex Court, the entrance examination is to be held between the 1st and 7th of May with minor variations and the results are to be published on the 1st of June.

h) On the 10th of June, notification has to be issued by the State Government, in terms of the direction issued by the Apex Court in Dar-Us-Slam Educational Trust (supra) which shall contain the fee structure, the seat matrix and other details as required to enable the students to choose a particular college to his /her liking.

i) The rest of the schedule can be in terms of the detailed time schedule fixed by the MCI as approved by the Apex Court in Ashish Ranjan (supra) and in terms of the directions issued in Dar-ul-Salam (supra) subject to such other modifications by the Apex Court.

j) The State shall conduct two rounds of common counselling, as directed by the Apex Court in Ashish Ranjan (supra) followed, if necessary, for the last round of spot admissions at the end, to fill WP(C): 21793/17 & contd. Cases -:87:- up the remaining vacant seats, strictly in accordance with the merit.

k) The Commission of Entrance Examination or the authority concerned, as the case may be, shall forward the list of admitted students to the Admission supervisory and Fee Regulatory Committee within 48 hours of the last date of closure of admission.

l) The fee as determined by the Committee for admission to a college would then be the fee for the entire five year course of that batch. There would thus be re-determination of fee for every successive batches every year accordingly.

These directions shall scrupuloulsy be complied with subject to such modification or directions issued by the Apex Court or the MCI from time-to-time.

95.The petitioners challenge the provisions of Section 8(4) of the 2017 Act and in particular, sub clauses (b) and (d) thereof.

"8. Powers and functions of the Committee.--

xxx xxxxx xxxx (4) The Committee may, if it is satisfied thadt there has been any violation by such institution of the provisions of this Act or the rules made thereunder regarding admission or fees, it may recommend to the Government to take the following actions against such institution, namely:-

(a) impose a monetary fine up to ten lakh rupees on the institution together with interest thereon WP(C): 21793/17 & contd. Cases -:88:- at the rate of twelve per cent per annum which shall be recovered as if it were an arrear of public revenue due on land;

(b) declare "admission" made in respect of any or all seats in a particular institution made in contravention of the provisions of this Act or the rules made thereunder invalid, whereupon the institution shall forthwith cancel the admission of such candidate and the concerned University shall cancel the enrolment of such student and cancel his results of any examination in which the candidate has already appeared;

(c) order the institution to refund to the student within such time as specified in the order, any amount received by the institution in excess of the fees fixed by the Committee or any amount receoved by way of capitation fee or any amount received for profiteering;

Provided that if the institution fails to refund the amount within the specified time to the student, the same shall be recoverable along with interest thereon at the rate of twelve per cent per annum as if it were an arrear of public revenue due on land and paid to the student;

(d) order the institution to stop admission or reduce the sanctioned intake in any medical course for such period as it may deem fit;

(e) recommend to the University or the appropriate authority to withdraw the recognition of the institution;

(f) any other course of action, as it deems fit."

96.It is submitted that Section 8(4)(b) which arrogates the power to declare admissions to be invalid is ultra vires the powers of the Committee as a substantive part of sub section (4) authorises it only to make a recommendation. In otherwords, WP(C): 21793/17 & contd. Cases -:89:- the concept of recommendation and declaration is contradiction. With reference to Section 8(4)(d), it is submitted that the authority to reduce the sanctioned intake in any medical course is again ultra vires the powers not only of the Committee but also the State in as much as the sanctioned intake is fixed by the Medical Council of India (MCI) which itself is evident from Section 2(s) of the 2017 Act. Similarly, it is submitted that Section 8(4)(e) is also ultra vires in as much as the University is an independent authority and cannot be dictated by anyone.

97.We have considered the argument. The first thing we would like to notice is that these are ancillary and incidental powers in aid of enforcement of the provisions. So far as the challenge to Section 8(4)(b) is concerned, it has to be read along with the power conferred on the Committee which is merely recommendatory to the Government and thus seen, it has to be read as the Committee may recommend to the Government to declare the admissions, in specified circumstances, to be invalid and upon such declaration by the Government, the consequences would follow. Thus read, there is nothing that would deem this provision to be ultra vires. So far as Section 8 (4)(d) is concerned, again it is merely a recommendation, but WP(C): 21793/17 & contd. Cases -:90:- insofar as reduction in the sanctioned strength of intake is concerned that cannot be done by the Committee or the State Government. They can only be done by the MCI and this section has to be read accordingly, and if so read, it is not ultra vires. Again so far as Section 8(4)(e) is concerned, it is also merely recommendatory. However, we may clarify that before taking any action in terms of Section 8(4) of the 2017 Act which are recommendations for penal action, the Committee would have to act in accordance with the principles of natural justice and make the recommendations only after hearing the parties concerned.

98.Lastly, there was a challenge in respect of Section 9(2) of the 2017 Act, which reads as follows:

"Eligibility for admission.--(1) xx xxx xxxx xx (2) Admission to sanctioned intake of students in an institution shall be strictly on the basis of interse merit obtained in the common entrance text in the manner as may be prescribed by the Government."

99.It is submitted though as per the orders of the Apex Court and the MCI, admissions have to be strictly in accordance with inter se merit obtained in the Common Entrance Test (CET), this section over-rides the same by adding "in such manner as may be prescribed by the Government". Thus, the State Government has arrogated to itself the power to prescribe a WP(C): 21793/17 & contd. Cases -:91:- different procedure. We cannot agree with this for the simple reason that the provision clearly says that admissions have to be on inter se merit obtained in CET and the concept of CET has been defined in Section 2(e) which is quoted hereunder:

"2. Definitions.- In this Act, unless the context otherwise requires,--

xx xxxx xxx xx

(e) "common entrance test" means an entrance test conducted by the Central Board of Secondary Education, New Delhi or any agency authorised by Government of India for determination of merit of the candidates;"

100.The only thing that the State Government may do is to prescribe the manner in which this has to be effectuated. It may or may not prescribe, but the fact remains that the provision restricts admissions on inter se merit alone, as obtained in the CET like NEET. Surely, the State Government is not expected nor would do anything to deviate from the concept of inter se merit obtained in the CET where, such CET is prescribed. However, the State would be free to prescribe the procedure in cases where there is no provision for CET.

101.Thus to conclude:

(a) The provisions of Section 3(2) of the 2017 Act, that is, the Constitution of ten members' committee has to be reconsidered by the State in the light of the observations made in this judgment.

WP(C): 21793/17 & contd. Cases -:92:-

(b) The provision of quorum as provided under Section 5 (3) of the 2017 Act is held to be clearly ultra vires the nature of the duties and functions of the Committee.

(c) The provisions of Section 8(1)(a) read with Section 11 of the 2017 Act is not ultra vires, but the power and function of the Committee has to be read as interpreted by the Apex Court in the case of Modern Dental College & Research Centre (supra). It means that the institution would propose the fee and the Committee would fix the same by deleting elements of profiteering and capitation fee, but leaving reasonable surplus.

(d) The provisions of Section 8(1)(b) in regard to the provisional fixation of fee is wholly ultra vires. But, the provisional fee as already fixed is already a fait accompli and being already a fait accompli, no order is required to be passed in regard to the provisional fee already fixed. The Committee should finalise the fee immediately, if not already done, within the prescribed period, following the procedure.

(e) The provisions of Section 8(4) and in particular Sections 8(4)(b), 8(4)(d) and 8(4)(e), for the reasons given above, cannot be held to be ultra vires.

(f) Section 9(2) of the 2017 Act is also not ultra vires and has to be read in the manner indicated in this judgment.

WP(C): 21793/17 & contd. Cases -:93:-

(g) Section 11 of the 2017 Act read with Section 8(1)(a) cannot be said to be unworkable in the absence of Rules prescribed, for the reasons given above in this judgment.

(h) Section 17 of the 2017 Act is declared ultra vires and unenforceable.

(i) Section 19 of the 2017 Act insofar as it seeks to validate the provisional fee fixed as on 13.07.2017 is clearly ultra vires the powers of the legislature, but as indicated above, it is a fait accompli.

(j) The directions regarding the time schedule as stated above have to be scrupulously followed to avoid any further chaos being created in future years.

In view of the above, the writ petitions are partially allowed to the extent indicated above.

Sd/-

Navaniti Prasad Singh, Chief Justice Sd/-

Raja Vijayaraghavan V., Judge krj1/11

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