Fees must be set in compliance with section 11 of Kerala medical education act, 2017: SC

We direct the Committee to expeditiously reconsider the proposals of the private self[1]financing colleges for fee fixation from 2017-18 onwards. Needless to mention that fee for earlier years also needs to be finalized in case it has not been done in respect of any college. It can direct the managements to furnish any information that is required for the purpose of arriving at a decision that the fee proposed by the managements is neither excessive nor exploitative in nature. A reasonable opportunity should be given to the managements of private self-financing colleges in respect of their proposals for fee fixation. The entire exercise shall be completed within a period of three months from today (Para.9).

NAJIYANEERMUNDA& ANR.VERSUS KUNHITHARUVAI MEMORIAL CHARITABLE TRUST & ORS.

February 25, 2021.

Civil Appeal Nos. 606 - 616 of2021

The Hon’ble Supreme Court consisting of Justice L Nageswara Rao and Justice Ravindra Bhat held In this Court’s Reference has been made to the higher fee fixed for a Deemed University in Kerala and by other States to argue that the fee for the years 2017-18 and 2018-19 shall be fixed at par with those institutions. The submission of the management is that there should have been a de novo consideration after remand by the High Court on 28.02.2019.

The dispute in these Appeals is over fee fixing by the Admission and Fee Regulatory Committee for MBBS students in private self-financing medical colleges in Kerala.

Pursuant to the judgment of this Court in P.A. Inamdar & Ors. v. State of Maharashtra & Ors. the State of Kerala enacted 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 Rules framed under the said Act came into force w.e.f. 2006. The said Act was replaced by Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Act, 2017 (hereinafter referred to as “the 2017 Act”). Certain provisions of the 2017 Act were challenged by way of Writ Petitions filed in the High Court of Kerala. The fixation of admission fee for all the medical colleges in the State of Kerala provisionally at Rs. 5 Lakh by the Admission and Fee Regulatory Committee was also a subject matter of challenge in the said Writ Petitions.

Fee Regulatory Committee (hereinafter referred to as “the Committee”) constituted under Section 3 of the 2017 Act. Section 8(1)(a) provides that the Committee can direct a private aided or unaided medical institution to furnish the required information along with necessary material enabling the Committee to determine the fee that may be charged by the institution in respect of each medical course. Section 11 of the 2017 Act mentions the factors that are to be taken into account by the Committee for determination of the fee to be charged by a private aided or unaided medical institution.

However, the High Court held that the fixation of fee provisionally was ultra vires the 2017 Act. After examining the law laid down by this Court in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors. 2, Islamic Academy of Education v. State of Karnataka & Ors. 3, P.A. Inamdar (supra) and Modern Dental College & Research Centre & Ors. v. State of Madhya Pradesh & Ors. 4 with respect to fixation of fee for professional courses in unaided medical colleges, the High Court of Kerala held that the institutions shall propose the fee structure and the scrutiny by the Committee shall only be for the purpose of ensuring that such fee is not exploitative and that the institutions are not indulging in profiteering or collecting capitation fee.

Consequent upon the judgment dated 02.11.2017 of the High Court, the Committee fixed the fee for the MBBS course for the years 2017-18 and 2018-19 for private medical colleges. Dissatisfied with the fee fixed by the Committee, the management of private self-financing medical colleges again approached the High Court by filing Writ Petitions which were heard and disposed of by the High Court on 28.02.2019.

The Committee was directed to pass fresh orders for fixing the fee in accordance with law at the earliest. The Committee issued fresh orders in July 2019 in respect of the fixation of fee for MBBS Course for the years 2017- 18 and 2018-19. Proceeding on the premise that the orders passed earlier fixing the fee were set aside by the High Court for lack of quorum, the Committee did not re-examine the proposals made by the management earlier. The Committee reiterated the fee that was fixed for the medical colleges in its earlier orders. The management of private self-financing colleges approached the High Court of Kerala by filing Writ Petitions challenging the orders passed by the Committee by which the fee fixed for the years 2017-18 and 2018-19 had been repeated again. By an order dated 14.01.2020, the High Court directed the managements of private self-financing colleges to provide a statement accompanied with an affidavit and a list of documents within a period of 3 weeks from the date of the order, relating to:

a. The cost of land and building with date of acquisition of land and construction of building,

b. Listed value of infrastructure,

c. List of equipment, its value and approximate life,

d. The salary and allowances paid to the teaching and non-teaching staff,

e. The expenditure on administration and maintenance of the medical educational institution,

f. Any other expenditure, and

g. Surplus for future development.

Prima facie, the High Court was convinced that the Committee did not reconsider the matter after the judgment of the High Court dated 28.02.2019. The High Court was convinced that the orders passed by the Committee fixing fee for the years 2017-18 and 2018-19 suffered from the vice of non-application of mind. The order dated 14.01.2020 was the subject matter of challenge in the SLPs filed in this Court which was disposed of on 06.03.2020 with a request to the High Court to decide the Writ Petitions. The High Court was also given the liberty to decide whether it can itself decide the fee.

Suffice it to mention that the Committee shall reconsider the proposals of the management for fee fixation 2017-18 onwards by taking into account the factors mentioned in Section 11 of the 2017 Act and the law laid down by this Court in Modern Dental College & Research Centre (supra). The delay that is caused in finalizing the fee in medical colleges is beneficial neither to the institutions nor the students. Therefore, we direct the Committee to expeditiously reconsider the proposals of the private self-financing colleges for fee fixation from 2017-18 onwards. Needless to mention that fee for earlier years also needs to be finalized in case it has not been done in respect of any college. It can direct the managements to furnish any information that is required for the purpose of arriving at a decision that the fee proposed by the managements is neither excessive nor exploitative in nature. A reasonable opportunity should be given to the managements of private self-financing colleges in respect of their proposals for fee fixation. The entire exercise shall be completed within a period of three months from today.

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Pratham Joshi