NISHANTH HIREMATH Vs. B R AMBEDKAR MEDICAL COLLEGE

JUDGEMENT

(1.) IN this bunch of Writ Petitions, the petitioners have called in question the validity of an order dated 22nd October, 1997, issued by the State Government, whereby tuition fee chargeable from candidates admitted to Medical and Dental Colleges in the State has been prescribed under the karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984. They have also assailed the validity of orders dated 15th and 16th of May 1997, issued by the Government of india in terms of Regulations framed under the India Medical Council Act, 1956 and the Dentist act, prescribing tuition fee payable by students admitted to Private Medical and Dental Colleges in the free and payment seats category. In two of the petitions viz. , W. P. No. 21552/98 filed by the Medical College Association and W. P. No. 21655/1998 filed by the Dental College association, a declaration to the effect that the Central Government alone is competent to prescribe the fee structure under the Regulation aforementioned has also been prayed for. The controversy arises in the following circumstances.

(2.) THE Karnataka Prohibition of Capitation Fees Act, 1984 and the Rules framed thereunder forbid charging of any fee other than what is prescribed in terms of Section 5 thereof. In exercise of the power vested in them the Government prescribed a fee of Rs. 60,000/- per annum by a notification dated 5. 6. 1989, which came under challenge in Miss MOHINI JAIN v. STATE OF karnataka AND ORS, AIR 1992 SC 2858. The court while striking down paras 1 (c) and 1 (d) of the Notification, declared that education being a fundamental right flowing directly from the right to life guaranteed by Article 21, no fee which was in excess of what was chargeable from the candidates admitted to Government Institutions could be justified. Close on the heels of that decision came UNNI KRISHNAN, J. P. v. STATE OF A. P. , AIR1993 SC 2178 , JT1993 (1 )SC 474 , 1992 (2 )SCALE703 , (1993 )1 SCC645 , [1993 ]1 scr594 , where the correctness of the view taken in MOHINI JAIN's case was also examined. The Court framed three questions for determination, out of which it answered two leaving the third open. On the first question formulated by it, the Court held that free education at State's expense was a fundamental right only for children upto the age of 14 years. Higher education including professional courses would, observed the Court depend upon the economic development in the Country. In regard to the second question, the Court held that while the right to establish an educational institution could be an occupation; the same was neither a trade nor a business nor even a profession with in the meaning of Article 19 (1) (g ). Any such right was not however absolute and did not carry with it the right to recognition or affiliation. Leaving the third question open, the Court held that keeping in view the limited outlays for education, private educational Institutions were a necessity in the present day context to supplement the State's efforts in providing education. These Institutions had of necessity to be self financing institutions, which according to their lordships raised important incidental questions as to how much fee could be charged from those, who were admitted to undergo professional courses in the same and the whether the fee could include even the capital cost incurred on the setting up of such Institutions. The Court also recognised the need for providing for two categories of students admitted to such Institutions viz; students admitted on the basis of merit and those admitted against payment seats. Having said so, the Court formulated a Scheme para 6 (a) and (b) where only are relevant for the present and may be gainfully extracted.

(3.) PURSUANT to the directions given as a part of the scheme framed by their Lordships, the State committees fixed the tuition fee payable by the merit and payment category of students. The fee so prescribed was also questioned before the Supreme Court in SHAHAL H. MUSALIAR AND anr. v. STATE OF KERALA AND ORS, (1993) 4 SCC 112. on the ground of being unrealistic with the result that the Court had to issue directions for refixing the same in the following words: