DEVARAJ Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THIS writ petition has been filed by a Medical college challenging the communication dated 13. 5. 2005 in D. O. No. U. 12012/1/2001-ME (P-II) 1971-VIP/04 (Annexure-E) and seeking a writ in the nature of mandamus or such other writ directing the first respondent to pay subvention amounts for the academic years 2002-2003 and 2003-2004 as claimed under letter dated 13. 11. 2004 and 20. 1. 2005 vide Annexures-C and D.

(2.) ACCORDING to the petitioner it is a College administered by an educational trust having faculties in medicine and it does not receive any aid from the University or the State Government or from the Central government and is therefore a self-financing medical institution; that the hon'ble Supreme Court in the case of Sri Unnikrishnan Vs. State of Andhra pradesh reported in AIR 1993 SC 2178 had formulated a scheme of admission with the object of removing mal-practice of charging capitation fee by the professional medical colleges and that the said scheme was put into operation from the academic year 1993-94 onwards. Subsequently, review petitions were filed by several institutions against the Judgment in unnikrishnan's case. Though the said review petitioner were dismissed by the Constitution Bench of the Hon'ble Supreme Court by its order dated 14. 5. 1993, several minority educational institutions had however, complained against the extension of the scheme formulated in unnikrishnan's case to the said institutions by way of writ petitions. The said writ petitions were heard and the matter was referred to a larger bench by order dated 7. 10. 1993 and the larger Bench of Seven Judges had framed questions, but the matter was not heard. But in view of the academic year 1994-95 certain institutions approached the Supreme Court for appropriate directions-with regard to the admissions for the academic year 1995-96. By order dated 11. 8. 1995 the Hon'ble Supreme Court passed an order with regard to the fee structure for the said academic year and also directed that subvention of Rs. 5000/- p. a. with regard to every student admitted in a private medical college, whether admitted against free/merit seat or against the payment seat, but not in respect of NRI/foreign student quota had to be provided by the Central Government commencing with the academic year 1995-96 and that the said direction was subject to the directions that would be issued by the larger Bench. A copy of the order dated 11. 8. 1995 is produced as Annexure-A to the writ petition.

(3.) ACCORDING to the petitioner respondent No. 1 by its letter dated 10. 12. 2003 made payment of subvention towards fee in respect of students admitted in the petitioner's college from the academic year 1996-97 onwards till the academic year 2001-02, but subsequently on account of the pronouncement of the Judgment in T. M. A. Pai Foundation and Others vs. State of Karnataka and Others by the Hon'ble Supreme Court in october/november 2002, the first respondent had not made the payments towards subvention and therefore, Annexures-C and D being letters dated 13. 11. 2004 and 20. 1. 2005 were addressed to the Minister for Health and family Welfare, Government of India requesting that the arrears of subvention towards fee as the Judgment in T. M. A. Pai's case was prospective in operation. In response to the said letters, the Minister for health and Family Welfare, Government of India (respondent No. l) by his communication dated 13. 5. 2005 stated that since the Supreme Court by its Judgment dated 31. 10. 2002 in T. M. A. Pai's case has held that the scheme framed in Unnikrishnan's case was unconstitutional, the interim order for payment of subvention also stood discharged and therefore, the central Government was not liable to make payments towards subvention from the academic year 2002-03 onwards. The said letter is produced as annexure-E and the same is impugned in this writ petition.