PUSHPAGIRI MEDICAL SOCIETY Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner institution, claiming to be an unaided minority medical college, has filed this petition challenging the constitutional validity of the kerala Self Financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act, 2004. Section 3 of the Act lays down procedure for admission into self-financing professional colleges. Sub-section (2) of Section 3 provides that in every self-financing professional college fifty per cent of the total seats in each branch shall be government quota and the remaining fifty per cent shall be management quota. Section 4 deals with fee structure. It, inter alia, provides that notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court or other authority or in any agreement, the fee to be collected from the candidates admitted in the government quota shall be the same as the fee prevailing for the corresponding course in the State Government colleges (Section 4 (l) (a)). Section 4 (1) (b) stipulates that the fee to be collected from the candidates admitted in the management quota shall be determined by the management taking into consideration the inevitable expenses for running the institution. The items that can be taken into consideration while determining the fee under clause (b) aforesaid are laid down in sub-section (2) of Section 4. According to the petitioner, the Act, in particular the aforesaid provisions providing for quota and fee structure, are violative of various provisions of the Constitution of India, including Articles 14 and 30, and also amounts to usurpation by the legislature of judicial power.

(2.) In that connection, our attention has been drawn to the judgment dated 20-1-2003 and the review judgment dated 17-2-2003 of a Division Bench of the Kerala High Court. By the said judgments, it was held that the reservation of seats of fifty per cent by the Government is not valid reservation and should be restricted to 25 per cent seats. The regulations which provided fifty per cent reservation for government seats were quashed. In support of challenge in the writ petition, reliance has also been placed on an eleven- judge Bench decision in T. M. A, Pai Foundation case and the Constitution bench decision in Islamic Academy case. The question of fixation of quota and fee structure, having regard to the nature of the controversy and interpretation sought to be placed on the aforesaid decisions, deserves to be referred for decision to a larger Bench for final determination. Our attention has also been drawn to an order dated 15-7-2004 passed in the case of P. A. Inamdar v. State of Maharashtra whereby some of the similar questions were directed to be referred to a larger Bench.

(3.) Thus, while issuing rule in the writ petition, we are of the view that the writ petition deserves to be decided expeditiously, preferably well before the commencement of the next academic year, by a larger Bench for which purpose papers may be placed before the Hon'ble the Chief Justice.