1. The petitioner in Writ Petition No.26413 of 2017 and Writ Petition No.26517 of 2017; and Writ Petition No.26889 of 2017 are the private unaided professional educational institutions imparting education in the field of Pharmacy including Bachelor of Pharmacy and Doctorate of Pharmacy courses. The petitioner in Writ Petition No.25592 of 2017 is the Association of Pharmacy college in Karnataka.
2. The learned counsel appearing for the petitioners in Writ Petition No.26413 of 2017 and Writ petition No.26517 of 2017, submits that the petitioner-institutions are premier institutions in imparting professional education courses in the field of Pharmacy. The petitioner-institutions were established with the permission of State Government/Pharmacy Council of India/AICTE respectively. The petitioners are a privately run colleges and does not receive any aid from the State. It is also submitted that the institutions had to invest huge sums in the establishment and running of the institutions. The petitioner institutions is affiliated to the third respondent-Rajiv Gandhi University of Health Sciences. As regards the seat matrix, the Government vide order dated 19th April 2007 fixed the ratio of 50:50, i.e. out of total intake of students 50% shall be the Management quota and another 50% was from the Government quota for M.Pharma; in the ratio of 75:25 for M.Sc. Nursing and M.P.T.; and in the ratio of 80:20 for B.Pharma, B.Sc. Nursing and B.P.T. The learned counsel submitted that vide order dated 02nd June 2017, the seat matrix for all the courses has been fixed in the ratio at 50:50. This, the learned counsel submits, is illegal and arbitrary. This the learned counsel submits is nothing but a unilateral condition imposed on the petitioner-institutions while considering grant of permission in exercise of its powers under Section 45(5) of the Rajiv Gandhi University of Health Sciences Act, 1994. The learned counsel further submitted that granting permission to commence B.Pharma, Pharma.D course, the institutions had to maintain highest level of infrastructure and facilities. It is also submitted that to establish a Pharmacy Educational Institution, the institutions should have a 300 bed hospital or should have a fulltime affiliation to a 300 bed hospital. Hence, the cost of imparting education in B.Pharma, D.Pharma, courses is considerably higher than other pharmacy courses. It is further submitted that the petitioner-institutions are imparting quality education and has determined a fee structure to the different courses of pharmacy. It is also submitted that the fees structure fixed by the Government under the state quota is less than the fee structure of the petitioner- Institutions which do not cover the expense of conducting the course. The fee prescribed by the State is wholly inadequate to the course and does not cover the expense of conducting the course. The petitioner-institutions had to incur heavy expenses to set up infrastructure as per the requirement under the regulations of the Pharmacy Council of India; as also in the light of the infrastructure already provided and considering the salaries and other development charges to be incurred from time to time, the petitioner-institutions have fixed Rs.2,00,000/- per student per year to prosecute Pharm-D. Whereas the fee structure fixed by the Government for the purported government seats is Rs.20,930/- for the Bachelor degree and Rs.86,930/- for the Masters which is wholly arbitrary, illegal and completely inadequate to run the course. To buttress his submissions, the learned Counsel has relied upon the judgment of the Hon''ble Supreme Court in the cases of T.M.A. PAI FOUNDATION v. STATE OF KARNATAKA REPORTED IN (2002)8 SCC 481; and the judgment in the case of P.A. INAMDHAR v. STATE OF MAHARASHTRA reported in (2005)6 SCC 537.
3. It is further submitted by the learned counsel for the petitioners that State has not opened any institute offering Pharm.D and Pharm.D (PB) course but has sought to stiffen off seats from the petitioner-institutions. The second respondent has conducted CET examinations for the students intending to prosecute pharmacy courses for the year 2017-18 has modified the seat matrix stiffening off 50% by notifying the ratio of 50:50 for Management and Government quota. Hence, the learned counsel prays for quashing the impugned order Annexure-D dated 02nd June 2017; for quashing the Notification Annexure-D1 dated 15th June 2017; Order Annexure-E dated 02nd February 2010; and order Annexure-E1 dated 22nd February 2013 issued by the respondents. It is also prayed to declare that the state government has no power or authority to notify any quota for itself or to fix fee structure. Similar direction is sought by the petitioner in the other petition.
4. The learned Government Advocate has filed Statement of Objections and submitted to dismiss these petitions. It is submitted that management seats are being filled with capitation fees. The institutions are not admitting the students though the students are remitting the prescribed fees at the time of admission but are demanding more fees, which has resulted in depriving the seats sponsored by the Government which resulted to take a decision to enhance the number of government seats at private colleges. He submitted that vide Order dated 2nd February 2010 through which order permission was granted for starting D.Pharm, it was made clear that permission is granted to start the D.Pharm institution with certain conditions. Restricting the intake at 30 students; and that petitionerinstitution has to share 50:50 ratio in Pharma-D course were other conditions. It is further submitted that Notification dated 14th November 2016 came to be issued wherein the pharmacy courses have been brought under the purview of Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006; and in view of the same Notification, the institutions fall under the purview of fee fixation committee and the committee will fix the fee. These norms will apply to Medical, Dental, Engineering, Pharmacy and Ayush courses. Accordingly, the submission of the counsel for the petitioners that the Government has no right in fixing the fee structure has no basis since the pharmacy courses also have brought under the purview of the 2006 Act.
5. It is further submitted that when the petitionerinstitutions have accepted the condition of seat sharing ratio for allotting seats under Government quota, the submission that there is no consensual agreement between the petitioner and Government in respect of sharing ratio cannot be accepted that even without having signed the consensual agreement between the institution and the Government the Petitioner-Institutions have agreed to the condition put in communication Annexure-E dated 02nd February 2010 that the petitioner-institutions have to share the seats in the ratio of 50:50. It is also submitted that the consensual agreement is only for the purpose of getting a fee concession with regard to payment of scholarships to the meritorious and poor students admitted in the Government quota. Hence, he submits that the Government has all right in fixing the seat matrix and also prescribing the fee for the courses and the action of the respondent is not illegal or arbitrary.
6. As regards the submission of the counsel for the petitioner that the Government has not come forward to start any pharmacy college, it is submitted that the Government has already decided to start D.Pharm course at Government College of Pharmacy at Kalaburgi and the ball is set into motion for implementation of the same.
7. Heard the learned counsel for the parties. It is the submission of the petitioners that the Government from the academic year 2017-18, has fixed the seat matrix in the ratio of 50:50, i.e. among the total intake 50% seats have to be allotted to the students under the Government quota. This, the learned counsel submitted is illegal and arbitrary. It is submitted that the Government cannot fix ratio for intake of the students to a private institution. The institution is a privately managed institution and has to make arrangement for necessary infrastructure which are very expensive, for imparting the pharmacy education. In this regard, it is necessary to note that in the Proceedings of the Government of Karnataka, Annexure-E dated 02nd February 2010, wherein permission was granted to the petitioner institution to start Pharma-D course from the academic year 2009-2010 with the intake of 30 seats with some conditions, of which, condition No.7 is that from among the intake of students, 50% of the seats are to be allotted under government quota. Condition No.8 clearly states that any violation of the conditions, will entail in canceling the permission granted to start Pharma-D course. The action of the state in fixing the seat matrix cannot be found fault with. The judgments relied upon by the learned counsel in the case of TMA PAI FOUNDATION and in the case of P.A. INAMDAR (supra) will not be of any use to the petitioners in these petitions in view of the fact there is no challenge to Section 45 of the Rajiv Gandhi University of Health Sciences Act, 1994. Section 45(5) of the Act is extracted hereunder:
"45(5) The Registrar shall within such time as
the Government may from time to time specify
submit application and all proceedings, if any, of the
Academic Council and of the Syndicate relating
thereto to the Government which, after such inquiry
as may appear to it to be necessary, shall make their
recommendations for the grant of the application or
any part thereof or refuse the application or any part
thereof and the University shall issue orders
accordingly."
8. Since there is no challenge made questioning the
validity of the Section, the same cannot be said to be illegal or
arbitrary.
9. State is under constitutional obligation to provide justice of social and economic; and equality of status and of opportunity. To achieve the said goal, state has duty to take all possible steps in providing education and reservation to various sections to achieve the status of equality and of opportunity. In this regard, the Hon''ble Supreme Court in the case of SADHURAM BANSAL v. PULIN BEHARI SARKAR AND OTHERS reported in AIR 1984 SC 1471 has held that "Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule." As between two parties if a deal is made with serious detriment to the other, then the Court would lean in favour of the weaker sections of the society. Under Section 45 of the Act, while exercising the power therein, the Government retains its power of seat sharing in order to provide educational opportunity to various weaker sections. The petitioner knowing fully well that while granting sanction to commence B-Pharma and D-Pharma courses that out of the admissions to made to the course, the petitioner would be provided with 50% and remaining 50% of the seats would be the state quota. The said 50% is not for any other purpose but to fulfill the constitutional obligation of providing educational opportunity to the weaker sections of the Society and in turn to achieve the equality class provided by the preamble of the Constitution.
10. The Hon''ble Supreme Court in the case of DALMIA CEMENT (BHARAT) LIMITED AND ANOTHER V/S UNION OF INDIA AND OTHERS reported in (1996)10 SCC 104 at paragraph 13 of the judgment held that "The ideal of economic justice is to make equality of status meaningful and the life worth living at its best removing inequality of opportunity and of status- social, economic and political."
11. In L. BABURAM V. RAGHUNATHJI MAHARAJ AND OTHERS reported in AIR 1976 SC 1734 has observed that social justice would include legal justice which means that the system of Administration of Justice, i.e. to provide cheap expeditious and effective instrument for realisation of justice by all Sections of the people, irrespective of their social or economic position or their financial resources. The percentage of reservation retained by the State is only with an obligation in achieving the constitutional end to provide cheap, expeditious and effective instrument for realization of social justice by all sections of people. The prayer made by the petitioner, if it is accepted, then it would certainly deprive the state from achieving the constitutional goal.
12. Article 37 of the Constitution of India though it shall not be enforceable by Courts, but it is made clear that the principles laid down therein are nevertheless fundamental in governance of the country and it shall be the duty of the state to apply these principles in making laws. Section 45 of the Act, is one such law which is made in compliance of the said provision. It is constitutionally presumable that the said Section is constitutional unless it is interfered by the Court. In the same line are Articles 38, 39-A and 46 of the Constitution, which are provided enabling the State to frame laws for the purpose of achieving its goal. Unless, sharing of seats is provided, the State shall not be in a position to provide education to all sections of the people, more particularly, the weaker sections. As the petitioner stated that opening of educational institution is a fundamental right in which it has referred in the judgment in the case of T.M.A.PAI FOUNDATION (supra), it is no doubt that at similar point of time, the constitutional obligation in compliance of Articles 14, 15 and 21 of the Constitution was carried and also with reference to Directive Principles of State Policy. It is more academic. While the rift between the rights of the parties are more of constitutional obligation of the State, it is the duty of the court to strike a balance between the one in achieving its obligation. Considering the same, I hold that the condition put while granting sanction to the petitioner-institution is not arbitrary but is lawful. As is stated earlier, the provision of Section 45 of the Act provides and enables the State as long as the same is not challenged restricting the institution exercise some percentage, it is in accordance with the spirit of the Constitution.
13. The learned counsel for the petitioners submitted that the Government has not come forward to establish pharmacy colleges and fixing of seat matrix to the private institutions will jeopardise the institutions as the fee structure of the Government is less and with that meager amount, it is impossible for the private institutions to develop infrastructure as per the guidelines of the Government. The non-establishment of any institution in that field is only to encourage the private institutions. The learned Government Advocate submits that Government is taking all steps to start Pharmacy College and as a first step it will be commence in the Government College at Kalburagi and the implementation of the project is on. But that does not mean to be understood that Government cannot or has no power to exercise its power under social legislation. The government has bounden duty to impart education to all classes of society and more particularly to a girl child. Keeping that in mind, if the Government has fixed the seat matrix with regard to intake of the students to the institutions, that cannot be termed as arbitrary or illegal. It is also the fundamental duty of the State to impart equal education to the students of all classes of the Society. It is also to be observed here that fixation of fee structure by the Government is also felt necessary as the private institutions fix the fee which the socially and economically backward student will not be in a position to pay the same though he/she has got selected in the Common Entrance Test and got allotted the college, but for want of payment of fee, the student may not be in a position to pursue the studies. Considering all these aspects, the state has fixed some fee structure and the seat matrix to the private institutions. The same cannot be found fault with.
14. In the result, these petitions fail and are accordingly rejected.
