THE MANAGER Vs. STATE OF KERALA

JUDGEMENT

(1.) Since the facts and issues involved are identical in both these writ petitions, they were considered together and disposed of through this common judgment. 2. Challenge in both the cases is mainly against an order passed by the State Government through the Health and Family Welfare Department; vide GO(Rt) No.448/2017/H & FWD, dated 19.2.2017 (Ext. P1 in WP(C) No.8627/2017 and Ext.P2 in WP(C).8705/17) and also against consequential orders issued by the Commissioner for Entrance Examination, the 2nd respondent in both these cases. By the impugned order the Government had issued directions to the 2nd respondent to prepare separate rank list for admissions to the B.Pharm and PharmD courses conducted by all the colleges/institutions, including the 'Self Financing Colleges', for the academic year 2017-18 and to hold counselling for allotment to the entire seats in the said courses in all the institutions. Specific direction issued was to prepare separate rank list based on the marks obtained by each of the candidates for Paper I in the 'Kerala Engineering Entrance Examination' conducted for admission to the Engineering courses, on the basis of index marks obtained in the subjects of Physics and Chemistry. From the contents of the order impugned, it is revealed that, hitherto to the process of admission with respect to the above said courses was entrusted with an institution, viz: the LBS centre for Science and Technology, Thiruvananthapuram, by authorizing them to receive applications for admissions and for preparing the rank list for all the colleges/institutions, including all 'Self Financing Colleges', based on the marks obtained by each of the candidates in the qualifying PlusTwo/equivalent examinations. The said procedure was being followed from the year 2009-10 onwards. In the Government order impugned herein it is mentioned that, an organisation of teachers working in Government Pharmacy Colleges had requested to the Government to initiate steps to introduce competitive Entrance Examination for the above said courses in all the colleges/institution including the Self Financing Colleges, from the academic year 2017-18 onwards and to entrust the process of admission to the 2nd respondent herein. It is further mentioned that, the Director of Medical Education had also reported that the All India Council of Technical Educations (AICTE) as well as the Pharmacy Council of India had also stipulated for conduct of entrance examination for admissions to the B Pharm courses. Therefore, the Director of Medical Education had recommended to complete the admissions to the B Pharm and Pharm. D courses out of the rank list prepared by the 'Commissioner of Entrance Examinations' based on the Entrance Examination conducted for Engineering courses. Evidently, the 2nd respondent had issued a notification instructing the students who are seeking admission to B. Pharm and Pharm.D courses to submit applications separately for those courses or to select those courses also for the Entrance Examination, for which they have already registered. 3. Challenge against the impugned orders are based on various grounds. The petitioners have raised a fundamental issue regarding authority/competence of the State Government to issue an Executive Order, like that the one now issued. It is contended that the rights of the 'Self Financing Colleges' to admit the students based on any rational selection processes derived by themselves, is now curtailed. In this regard, much reliance was placed by Sri.Kurian George Kannanthanam, learned senior counsel appearing for the petitioner in one of the cases, on a decision of the hon'ble Supreme Court in TMA Pai Foundation vs. State of Karnataka (2002 (8) SCC 481). Referring to paragraphs 19 and 20 of the said ruling, it is pointed out that, the apex court had held that 'education' will fall within the meaning of 'occupation' coming under Article 19(1) (g) of the Constitution of India. It is further pointed out that, in para 14 of the above said judgment, the right of private unaided institutions for evolving a rational selection process devised by themselves, subject to the minimum qualifications that may be prescribed and subject to the system of computing equivalence from different kinds of qualifications, was upheld. Crux of the contention is that, based on the rights upheld by the apex court, which are constitutional rights available to private self financing institutions, the Government cannot have intruded into those rights, especially through an executive order, even without exercise of their legislative powers, if any. In this regard, the learned senior counsel had also placed reliance on a Division Bench decision of this court in St. Joseph's Hospital Trust vs. Kerala University of Health Sciences (2012(4) KLT 444). In the said decision in paragraph 25 it is observed that, it is beyond the scope of any doubt that, if the rights under Article 19 is to be encroached upon by way of reasonable restriction on the fundamental rights, it can be achieved only by a law and the word 'law' as it stands interpreted will not embrace within its scope an executive instruction, be it one made under Article 162 of the Constitution. 4. Further contention raised on behalf of the petitioners is that, in an unaided institution, the entire seats belongs to the college and the State cannot usurp themselves into the powers of admitting students even for a single seat. It is contended that, as held by the hon'ble Supreme Court in P.A.Inamdar and others vs. State of Maharashtra and others ( 2005(6)SCC 537), what is permissible was only a consensual agreement of seat sharing, without their being any effect of cross subsidy. Therefore it is contended that the right to choose the candidates and to make the admissions, is an essential right co-existed with the right to establish colleges, which is protected under the Constitution of India. In this regard it is pointed out that the legislation which was brought in by the State of Kerala, Act 19 of 2006, through confers a right on the State to have admissions to 50% of the seats, had already been struck down by a Division Bench of this court in the decision reported in Lisie Medical and Educational Institutions vs. State of Kerala (2007 (1) KLT 409). The said issue is now pending decision before the hon'ble Supreme Court . It is pointed out that the hon'ble Supreme Court has not stayed the operation of the judgment of this court. Based on all the above said contentions it is argued that, the order impugned in these writ petitions had the inherent lack of competence/authority and is liable to be set aside. 5. Apart from the above said legal contentions, it is pointed out that, the scheme now proposed through the impugned order lacks clarity in many respects. It is pointed out that, it will be totally irregular and improper to have the selection of students for B.Pharm and Pharm. D courses from the rank list prepared based on the entrance examination conducted for admission to Engineering courses. It is pointed out that, the basic eligibility prescribed for those courses is a pass in the 'Higher Secondary Examination' or any other examination recognised as equivalent thereto, with 50% marks in Biology and Maths separately, and with 50% aggregate marks in the subjects of Physics, Chemistry, Biology and Maths. That being so, the fallacy of admitting students to those courses based on their ranking in part-I of the 'Engineering Entrance Examination' for the subjects of Physics and Chemistry, is pointed out. It was also pointed out that, for implementing the scheme as envisaged under the impugned order, as directed by the 2nd respondent through the notification issued, the students seeking admission to the courses of B.Pharm and Pharm.D has to wait till the completion of the centralised admission process for the Engineering courses in the State. Contention was raised to the effect that, those students who had completed the qualifying examination and is seeking admission to B. Pharm and Pharm.D courses alone will also be compelled to write the entrance examination for the Engineering courses and the marks secured by them with respect to the subjects of Biology/Maths in the qualifying examination will become irrelevant. It is further contended that the self financing colleges conducting the courses of B. Pharm and Pharm. D will be deprived of and will be restrained from conducting examination and from completing the admission process through their own system and method of rational selection. 6. In a detailed counter affidavit filed on behalf of the State Government it is contended that, the Pharmacy Council of India and the AICTE had emphasised and mandated the need for introducing entrance examination for admissions to Pharmacy courses. It is also contended that, since the statutes regulating the functioning of those authorities insist for approval from the Government, for the purpose of establishment of the institutions and for affiliation of the courses, the affiliating universities are bound to accept the views of the Government and cannot come beyond that in the matter of affiliation of the colleges, even in unaided sector. Therefore it is contended that, challenge against the impugned orders as violative of the rights protected under Article 19(1)(g) as well as the right claimed under Article 13 (2) of the Constitution of India, are not sustainable. It is mentioned in the counter affidavit that, the Government felt it necessary to regulate the admissions for affiliated courses, as in the case of admissions to the Medical and Engineering courses, because of the increase in the number of colleges conducting Pharmacy courses. Therefore it was intended to make the admission to Pharmcy courses under a selection process, to be conducted by the 2nd respondent. It is contended that the practice hitherto followed was deviated on the basis of recommendations evolved in a meeting which was convened by the 'Admission Supervisory Committee' for professional colleges. Minutes of the meeting held by the 'Admission Supervisory Committee' for professional colleges, on 31.10.2016, is produced as Ext.R1 (a). It is pointed out that a unanimous decision was taken in that meeting to evolve an admission process to B.Pharm and Pharm. D courses, based on an entrance examination. It was decided in that meeting to conduct a common entrance examination by the 'Admission Supervisory Committee' or by the 2nd respondent, for the applicants of Pharmacy Degree courses including Pharm.D for the year 2017-18 onwards. It is pointed out in the counter affidavit that, based on the impugned order of the State Government the 2nd respondent had evolved the procedure for conduct of the selection out of the entrance examination conducted for Engineering Courses and the applicants were provided with adequate opportunity to register for Pharmacy courses by making necessary options. 7. While evaluating the rival contentions, we take note of the fact that the State Government is not in a position to specifically meet the challenges on the fundamental aspects of legal/constitutional rights claimed by the petitioners. The source of authority/competence of the Government to make the admissions or the allotment to all the seats for the Pharmacy courses in the colleges/institutions, even in the Self financing institutions, is not at all discernible from the contentions in the counter affidavit. The argument that the statutes governing establishment and functioning of the regulatory bodies like Universities, Pharmacy Council of India, AICTE etc; will confer power on the Government to regulate the establishment or affiliation of the professional educational institutions, will not in any manner help the Government to extent those powers for regulating or for taking away the rights of the managements to formulate their own methods of admission, in a rational and transparent manner. Therefore, we are of the opinion that, the impugned action will result in an intrude into the constitutional rights of the managements, which remains well settled through various legal precedents. Further, there is no specific answer forthcoming with respect to the contention that, any restrictions with respect to those powers can be attempted to be introduced only through a process of legislation and not through an executive order. Hence we are of the opinion that the challenges raised by the petitioners in this regard need to be sustained. 8. Coming back to the practical and procedural aspects, it need to be considered that, the system followed from the Academic year 2009-10 is to make admissions for 50% of the seats in the Pharmacy courses, by conducting separate selection process. The task of which was entrusted by the Government with LBS Center for Science and Technology, Thiruvananthapuram. Presumably, the said arrangement was continuing on the basis of consensual agreements executed between individual self financing institutions and the Government, on an year to year basis. In the impugned order of the State Government, the reason for deviating from the procedure hitherto followed was mentioned as, receipt of a representation from the General Secretary of the Kerala Government Pharmacy College Teachers Association, who is impleaded as 3rd respondent in both these cases. It is indicated that the said organisation had requested the Government to take steps to introduce competitive entrance examination for the admission to B. Pharm and Pharm.D courses, in all the colleges/institutions, including the self financing colleges, from the academic year 2017-18 onwards and to entrust the conduct of such examination and the admission process to the Commissioner of Entrance Examination, the 2nd respondent herein. It is stated in the impugned order that on the basis of the said request the Government thought it appropriate to discontinue the admission process which was entrusted with the LBS center and to entrust the task to the 2nd respondent, from the year 2017-18. Evidently, the Government also considered the recommendations made by the Director of Medical Education pointing out about the insistence from the side of the AICTE. But in the counter affidavit filed on behalf of the Government, a deviated version is stated that the impugned decision was taken based on recommendation of the 'Admission Supervisory Committee', on the basis of a joint meeting convened by the said authority on 31.10.2016. We find merit in the contentions of the petitioners that the Government was not supposed to take any decision on the question of regulating admissions of self financing colleges, based on the request of any organisation functioning in the sector of teachers of the Government Pharmacy colleges. However, when we look at the recommendations alleged to have been made by the 'Admission Supervisory Committee,' it is to be noted that the meeting in question was held much prior to the impugned order of the Government. It is evident that the decision was only to the extent of introducing a separate common entrance examination for the applicants of Pharmacy courses, including Pharm.D course. But what is now introduced by the Government through the impugned order, is a method which suffers from many infirmities on the factual and practical side. As discussed above, it is not at all proper for authorizing the 2nd respondent to make admissions for the Pharmacy courses based on the rank of students who appeared for the Entrance Examination conducted for Engineering courses, that too based on the marks obtained in one part, as in the subjects of Physics and Chemistry alone. 9. We are of the opinion that, even if the Government is vested with any powers to have the selection process and admission done by themselves for Pharmacy courses in colleges/institutions including self financing colleges, it cannot be done in a manner as contemplated in the orders which are impugned in these writ petitions. Evidently the arrangement now made suffers from the factual, technical and practical flows and infirmities. Further, we are inclined to hold that the impugned proceedings are lacking authority/ competence on the part of the Government in taking away the rights of the managements in conducting the selection process in a rational and transparent manner subject to consensual agreement if any entered by them with the Government. 10. Result of the above discussions is that, the impugned order of the State Government vide; GO (Rt) 448/2017 H & FWD, dt. 19.2.2017 and the consequential Notification issued by the 2nd respondent, dt. 27.2.17 are liable to be set aside, to the extent it is applicable to self financial educational institutions conducting courses of B. Pharm and Pharm.D courses. Hence we order so. The writ petitions are allowed accordingly.