1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11 TH DAY OF FEBRUARY, 2015 BEFORE THE HON BLE MRS. JUSTICE B.V.NAGARATHNA WRIT PETITION NO.40331 OF 2014 & WRIT PETITION NOs.40777-40865 of 2014 (EDN-AD) BETWEEN: 1. CBCI SOCIETY FOR MEDICAL EDUCATION, A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, HAVING ITS REGISTERED OFFICE AT ST. JOHN S NATIONAL ACADEMY OF HEALTH SCIENCES, JOHN NAGAR, SARJAPUR ROAD, BANGALORE-560 034, REPRESENTED BY ITS SECRETARY, REV. DR. LAWRENCE D SOUZA. 2. ST. JOHN MEDICAL COLLEGE, UNDER THE ADMINISTRATION OF C.B.C.I. SOCIETY FOR MEDICAL EDUCATION, ST. JOHN NAGAR, SARJAPUR ROAD, BANGALORE-560 034, REPRESENTED BY THE DEAN, MR. K. SRINIVASAN.... PETITIONERS (BY SRI K.G.RAGHAVAN, SR. COUNSEL) AND: STATE OF KARNATAKA, DEPARTMENT OF HEALTH AND FAMILY WELFARE
2 (MEDICAL EDUCATION), VIDHANA SOUDHA, BANGALORE-560 001, REPRESENTED BY ITS PRINCIPAL SECRETARY.... RESPONDENT (BY SRI VIJAYA KUMAR, A.G.A.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COMMUNICATION DTD. 31.7.2014 VIDE ANNX-A ISSUED BY RESPONDENT AND DIRECT THE RESPONDENT TO APPROVE THE INCREASE IN INTAKE SANCTIONED BY THE RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCE, KARNATAKA FROM 60 TO 150 SEATS FOR THE MBBS COURSE FOR ACADEMIC YEAR 2015-16. THESE PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R Petitioners have assailed communication dated 31.07.2014 issued by the respondent department (Annexure-A) to these writ petitions. 2. Petitioners had sought permission for increase in intake of seats in the second petitioner-college already sanctioned by the Rajiv Gandhi University of Health Sciences, Karnataka (hereinafter referred to as RGUHS for short) from 60 to 150 seats for MBBS course for the academic year 2015-16. In response to that request, the respondent-department has issued the impugned
3 communication, stating that while increasing intake from 60 to 100 seats, 25% of the seats would have to be surrendered to the Common Entrance Test ( CET ) Cell, so that they could be filled under Government Quota. That condition has been assailed in these writ petitions. 3. According to petitioners, the second petitioner-college was started by the first petitioner-society in the year 1963 and has its campus at St. John s National Academy for Health Sciences, Bangalore. In fact, the first petitioner-society was registered with the Registrar of Societies, Mysore under the Mysore Societies Registration Act-III of 1904 on 07.02.1961 as St. John s Medical College and Hospital Society, Bangalore. Subsequently, the name has been changed to CBCI Society for Medical Education by order dated 30.12.1964. 4. According to petitioners, the first petitioner- Society is registered primarily for the benefit of the Catholics, which according to them is a religious minority community in the State of Karnataka. The first petitioner established the second petitioner-college to train Doctors and Nurses, in the year 1963, under the name and style of
4 St. John s Medical College. The second petitioner-college is recognized and approved under the provisions of Indian Medical Council and is affiliated to RGUHS. The second petitioner-college has courses at Graduate and at the Postgraduation level in various branches of Medical Sciences. Petitioners claim that the second petitioner-college is a Private Unaided Minority Institution and it has an independent admission process on an All India basis. 5. On 20.03.2014, the second petitioner-college wrote to the Registrar, RGUHS in order to seek permission to increase the intake capacity from 60 to 150 seats for the academic year 2015-16 with regard to MBBS course. Thereafter, a Local Inspection Committee (LIC) was constituted by RGUHS who have inspected the infrastructure and other facilities available in the second petitioner-college and submitted its report to RGUHS. On 26.06.2014, Registrar, RGUHS wrote to the Secretary, Medical Council of India indicating its consent regarding affiliation for the purpose of MBBS course with an increased intake from 60 to 150 seats. A copy of that letter is produced as Annexure-E to these writ petitions. The
5 Registrar, RGUHS also issued a communication dated 26.06.2014 to the respondent informing about the report submitted by the LIC and also about the proposal of the second petitioner-college to increase its intake of students. 6. According to the petitioners, the syndicate of RGUHS has at its meeting held on 24.06.2014, accepted the recommendations of the Committee of Academic Council. When the matter stood thus, the impugned communicated dated 31.07.2014 has been issued by the respondent stating that the increase in the intake capacity from 60 to 100 (instead of 150) would be subject to the second petitioner-college surrendering 25% of the available seats in the college to Government of Karnataka, so as to enable them to fill those seats through the Common Entrance Test (CET). That condition in the impugned communication is assailed in these writ petitions. 7. During the pendency of these writ petitions, on 26.08.2014, this Court directed the respondent to consider the case of the petitioners and pass appropriate orders without insisting on 25% of the seat share for the purpose of issuance of Essentiality Certificate. Pursuant to that
6 order, the respondent has issued a communication dated 18.08.2014 stating that the Essentiality Certificate and Feasibility Certificate is issued subject to the result of these writ petitions. 8. I have heard learned Senior Counsel, Sri K.G.Raghavan, for the petitioners and learned Additional Government Advocate, for the respondent and perused the material on record. 9. During the course of his submission, learned Senior Counsel for the petitioners brought to my notice that insistence of surrender of 25% of increased intake of seats to the State Government is contrary to dictum of the Hon ble Supreme Court in the case of P.A.Inamdar -vs- State of Maharashtra (2005 [6] SCC 537) which has specifically dealt with the right of unaided Minority Institutions and the extent to which there could be any regulation of such institutions which are private professional educational institutions. He also contended that when the first petitioner sought permission to increase the intake capacity insofar as the St. John s College of Nursing was concerned, a similar insistence of surrender of 25% was
7 made by the respondent and W.P.Nos.32106-32107/2011 and connected writ petitions were filed before this Court and on 27.02.2012, this Court after considering the matter at length quashed the condition regarding surrender of 25% of the seats and despite such an order being passed by this Court, the respondent has once again insisted on the same condition for the purpose of issuance of Essentiality Certificate, by ignoring the order dated 27.02.2012, which has attained finality. He therefore contended that the condition regarding surrender of 25% of the seats in the increased intake from 60 to 100 as mentioned in communication dated 31.07.2014 may be quashed and the respondent be directed to issue the Essentiality Certificate and Feasibility Certificate in accordance with law. 10. Per contra, learned Additional Government Advocate appearing for the respondent very fairly submitted that the orders of the Hon ble Supreme Court as well as the order of this Court in W.P.Nos.32106-32107/2011 and connected writ petitions are binding on the respondent and therefore, appropriate orders may be passed in the matter.
8 11. The Hon ble Supreme Court in P.A. Inamdar has specifically dealt with the status of Minority Institutions receiving aid from the State and those institutions which do not receive such aid as self-financing institutions engaged in imparting professional education. At Paragraph No.125, the Hon ble Supreme Court has opined as under: As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill which was approved by Pai Foundation is there anything which would allow the state to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be
9 held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit. 12. In fact, at Paragraph No.130, the Hon ble Supreme Court has held that it could not approve of the scheme evolved in Islamic Academy of Education -vs- State of Karnataka (2003 [6] SCC 697) wherein, it allowed the State to fix quota for seat-sharing between the management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories and it disapproved the observations made in Islamic Academy s case as it was not in accordance with the T.M.A. Pai
10 Education -vs- State of Karnataka (2002 [8] SCC 4818). 13. It is on account of the aforesaid observations, State of Karnataka has consensual arrangements with private professional educational institutions in the State. However, with regard to sharing of the seats, insofar as the petitioners are concerned, they have never been a part of such consensual arrangement or agreement with the State Government. As already stated, they have their own process of admissions and filling up of the seats. Therefore, the respondent could not have insisted on surrender of 25% of the increased intake capacity to the State Government for the purpose of filling up of those seats through CET while considering the case of the petitioners for issuance of Essentiality Certificate and Feasibility Certificate. 14. In fact, in W.P.Nos.32106-32107/2011 and connected writ petitions disposed of on 27.02.2012, this Court at Paragraph No.22 has held as under: For an additional reason too, the Government s insistence for seat-sharing is unsupportable. It is not in dispute that the
11 petitioner is a minority institution and that it is a self-financing institution. In the case of P.A.Inamdar (supra), the Apex Court has held that the appropriation of seats by the Government in minority unaided institution cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) of the Constitution of India or a reasonable restriction within the meaning of Article 19(6) of the Constitution of India. Following the said judgment of the Apex Court, the Division Bench of this Court in W.P.No.14160/2005, filed by the petitioner College and others took the considered view that the petitioner College cannot be forced to give up a share of seats to the Government. (underlining by me) The aforesaid observations squarely apply to the instant case. 15. In the circumstances, Annexure-A dated 31.07.2014 is quashed. The respondent is directed to consider the request made by the petitioners for the purpose of issuance of Essentiality Certificate and Feasibility Certificate in accordance with law and without insisting on surrendering of 25% of the increased intake of
12 seats to the State Government. The said exercise shall be carried out in an expeditious manner and within a period of two weeks from the date of receipt of a certified copy of this order. 16. Accordingly, these writ petitions are disposed in the aforesaid terms. Sd/- JUDGE ST