TaxTMI 
TaxTMI 
1992 (7) TMI 330
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....e tuition fee, other fees and deposits to be charged from the students by the Private Medical Colleges in the State. Under the notification the candidates admitted against "Government seats" are to pay Rs. 2,000 per year as tuition fee. The Karnataka students (other than those admitted against "Government seats") are to be charged tuition fee not exceeding Rs. 25,000 per annum. The third category is of "Indian students from outside Karnataka", from whom tuition fee not exceeding Rs. 60,000 per annum is permitted to be charged. Miss Mohini Jain a resident of Meerut was informed by the management of Sri Sriddharatha Medical College, Agalokote, Tumkur in the State of Karnataka that she could be admitted to the MBBS course in the session commencing February/March 1991. According to the management she was asked to deposit Rs. 60,000 as the tuition fee for the first year and furnish a bank guarantee in respect of the fee for the remaining years of the MBBS course. The petitioner's father informed the management that it was beyond his means to pay the exorbitant annual fee of Rs. 60,000 and as a consequence she was denied admission to the medical college. Mohini Jain has alleged tha....
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....s Court in D.P. Joshi v. The State of Madhya Bharat, and another [1955] SCR 1215. After hearing learned counsel for the parties and also perusing the written arguments submitted by them the following points arise for our consideration in this writ petition: (1) Is there a 'right to education' guaranteed to the people of India under the Constitution? If so, does the concept of 'capitation fee' infracts the same? (2) Whether the charging of capitation fee in consideration of admissions to educational institutions is arbitrary, unfair, unjust and as such violates the equality clause contained in Article 14 of the Constitution? (3) Whether the impugned notification permits the Private Medical Colleges to charge capitation fee in the guise of regulating fees under the Act? (4) Whether the notification is violative of the provisions of the Act which in specific terms prohibit the charging of capitation fee by any educational institution in the State of Karnataka? In order to appreciate the first point posed by us it is necessary to refer to various provisions of the Constitution of India. The preamble promises to secure to all citizens of India "Justice, social, economi....
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....ution, for free and compulsory education for all children until they complete the age of fourteen years." It is no doubt correct that "right to education"as such has not been guaranteed as fundamental right under Part III of the Constitution but reading the above quoted provisions comulatively it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizens. The preamble promises to secure justice "social, economic and political" for the citizen. A peculiar feature of the Indian Constitution is that it combines social and economic rights along with political and justiciable legal rights. The preamble embodies the goal which the State has to achieve in order to establish social justice and to make the masses free in the positive sense. The securing of social justice has been specifically enjoined an object of the State under Article 38 of the Constitution. Can the objectice which has been so prominently pronounced in the preamble and Article 38 of the Constitution be achieved without providing education to the large majority of citizens who are illiterate. The objectives flowing from the preamble cannot be achieved an....
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....he executive should not merely pay lipservice to these principles but that they should be made the basis of all legislative and executive action that they may be taking hereafter in the matter of the governance of the country" (C.A.D. Vol.VII p.476.) The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education" under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate. This Court has interpreted Article 21 of the Constitution of India to include the right to live with human dignity and all that goes along with it. In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, [1981]2 SCR 516, this Court elaborating the right guaranteed under Article 21 of the Constitution of the....
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....dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens. The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity. The "right to education", therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional-mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. increasing demand for medical education has led to the opening of large number of medical colleges by private persons, groups and trusts with the permission and recognition of State Governments. The Karnataka State has permitted the opening of several new medical....
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.... of 1 : 500. Such over production of tehnical man-power from our medical colleges is bound to lead to unemployment and frustration. Indeed the unabated exodus of our professional collegues to other countries is a direct consequence of these lopsided policies. According to some estimates. India has exported human capital worth over 51 billion dollars to USA alone during 1966-88. Currently about 8000 skilled young men and women are leaving the country every year. It is high time a blanket ban is imposed on any further expansion of medical colleges in our country and a well thought out plan to reduce the intake into existing institutions is prepared. This will help to improve the standard of medical education and health care in our country. It is common knowlege that many of the newly started medical colleges charge huge capitation fees. Besides, most of these are poorly equipped and provide scanty facilities for training of students. At best such institutions can be termed as "Teaching Shops". Experience has shown that these colleges admit students who have been unable to gain admission in recognised medical colleges. The result is a back door entry into medical training obtained ....
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....te action or inaction which defeats the constitutional-mandate is per se arbitary and cannot be sustained. Capitation fee makes the availability of education beyond the reach of the poor. The state action in permitting capitation fee to be charged by state-recognised educational institutions is wholly arbitrary and as such violative of Article 14 of the Constitution of India. During the last two decades the horizon of equality clause has been widened as a result of this Court's judgments. Earlier the violation of Article 14 was judged on the twin t ests of classification and nexus. This Court in E.P. Royappa v. State of Tamil Nadu and Anr., [1974] 2 SCR 348 gave new dimension to Article 14 in the following words: "Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute....
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....not be permitted. Mr. Santosh Hegde and Mr.Vaidyanathan learned counsel for respondent 3 and the interverner have relied upon D.P. Joshi v. The State of Madhya Bharat and Anr., (supra) for the proposition that classification of candidates for admission to medical colleges on the basis of residence is permissible. In D.P. Joshi's case a resident of Delhi was admitted as a student of Mahatma Gandhi Memorial Medial Cellege Indore which was run by the State of Madhya Bharat. His complaint was that the rules in force in the said institution discriminated in the matter of fees between students who were residents of Madhya Bharat and those who were not, and that the latter had to pay in addition to the tuition fee and charges payable by all the students a sum of Rs. 1500 per annum as capitation fee and that the charging of such a fee from the students coming out of Madhya Bharat was in contravention of Articles 14 and 15(1) of the Constitution of India. In D.P. Joshi's case the only point for decision before this Court was whether the classification on the ground of residence was justified. This court while dealing with the question observed as under: &....
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....ion on the ground of residence is a justifiable classification under Articles 14 and 15(1) of the Constitution of India. The question that capitation fee as a consideration for admission is not permissible under the scheme of the constitution, was neither raised nor adverted to by this Court. The imposition of capitation fee was also not questioned on the ground of arbitrariness. The only question raised before the Court was that the Madhya Bharat students could not be exempted from the payment of capitation fee. It is settled by this Court that classification on the ground of residence is a valid classification. Subsequently this Court in Dr. Pradeep Jain etc. v. Union of India and Ors. etc., [1984] 3 SCR 942 reiterated the legal position on this point. we are, therefore, of the view that D.P. Joshi's case does not give us ary guidance on the points before us. To appreciate the third point it is necessary to notice the relevant provisions of the Act and the notification. Section 2(b), (e), 3, 4, and 5 of the Act are as under: "2(b). "Capitation fee" means any amount, by whatever name called, paid or collected....
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....ement of such institution. (i) from among Karnataka students on the basis of merit, on payment of such cash deposits refundable after such number of years, with or without interest as may be specified therein, but without the payment of capitation fee; or (ii) at the discretion: Provided that such number of seats as may be specified by the Government but not less tha fifty per cent of the total number of seats referred to in clauses (a) and (b) shall be filled from among Karnataka students. Explanation. - For the purpose of this section Karnataka students means persons who have studied in such educational institutions in the State of Karnataka run or recognised by the Government and for such number of years as the Government may specify; (3) an educational institution required to fill seats in accordance with item (i) of sub-clause (b) of clause (2) shall form a committee to select candidates for such seats. A nominee each of the Government and the University to which such educational institution is affiliated shall be included as members in such committee. 5. Regulation of fees, etc. - (1) It shall be competent for the Government, by notification, to regulate the....
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....nst Government seats as at (b) above) admitted by Private Medical Colleges shall be charged tuition fee not exceeding Rs. 25,000 each per annum (Rupees Twenty-five thousand only); (d) Indian Students from outside Karnataka admitted by Private Medical Colleges shall be charged tuition fee not exceeding Rs. 60,000 each per annum (Rupees Sixty thousand only); The Act has been brought into existence by the Karnataka State Legislature with the object of effectively curbing the evil practice of collecting capitation fee for admitting students into the educational institutions in the State of Karnataka. The preamble to the Act which makes the object clear is reproduced thereunder "An Act to prohibit the collection of capitation fee for admission to educational institutions in the State of Karnataka and matters relating thereto; Where the practice of collecting capitation fee for admitting students into educational institutions is widespread in the State; And whereas this undesirable practice beside contributing to large scale commercialisation of education has not been conducive to the maintenance of e....
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....e in government colleges and for "Government seats" in private medical colleges than it is the state responsibility to see that any private college which has been set up with Government permission and is being run with Government recognition is prohibited from charging more than Rs. 2000 from any student who may be resident of any part of India. When the State Government permits a private medical college to be set-up and recognises its curriculum and degrees than the said college is performing a function which under the constitution has been assigned to the State Government. We are therefore of the view that Rs. 60,000 per annum permitted to be charged from Indian students from outside Karnataka in Para. 1(d) of the notification is not tuition fee but in fact a capitation fee and as such cannot be sustained and is liable to be struck down. Whatever we have said about para 1(d) is also applicable to Para 1(c) of the notification. Since we have held that what is provided in para 1(d) and 1(c) of the impugned notification dated June 5, 1989 is capitation fee and not a tuition fee it has to be held that the notification is beyond the scope of the Act rather goes contrary to section ....