Nitte Education Trust Vs. State of Karnataka - Court Judgment

Excerpt:
(a) constitution of india - article 30 - right of minority institutions to establish & administer institutions of choice - subject to reasonable restrictions to maintain efficiency, excellence & discipline - principles evolved.; questions for determination: ;1. whether a right is conferred on the minority institutions (linguistic or religious) to start educational institutions of their choice which include institutions imparting general and secular education or can it be extended to opening of colleges like medical, engineering & other technical courses? ;2. whether acts of the government in not considering the petitioner's applications or permission to start medical colleges are not acts of colourable exercise of power by the respondent? in other words, whether the acts of the government in not considering the petitioner's applications for starting medical colleges cannot be said as one of legal malafides? ;3. whether the petitioners are entitled for a direction in their favour directing the government to grant them permission to start new medical colleges as prayed for? ;under article 30(1) of the constitution minority institutions whether they are linguistic or religious minority institutions have a right to establish and administer institutions of their choice, but such right is subject to reasonable restrictions and regulations made by the government in order to maintain efficiency and academic excellence, discipline etc... since the government has not turned down the requests of some of the petitioners to start medical colleges on the ground that they are minority institutions, the question of answering that the order under challenge is against article 30(1) of the constitution does notarise. ;(b) karnataka state universities act, 1976 (karnataka act no. 26 of 1976) - section 53(5) -application for affiliation processed under section 53 of ksu act, 1976 - duty of government to take decision under section 53(5) of ksu act, 1976 exercised fairly & in reasonable manner without arbitrariness or discrimination: else, action violative of article 14 of constitution of india - policy not to be extended for ever on the ground no more medical colleges required during plan period - public policy however laudable preferring few & prohibiting others applying different yardstick, arbitrary -discretion to be exercised guided by law & rule, not humor not be vague or fanciful. ;it is not in dispute that when an application filed by an institution seeking affiliation or permission to start a college, the same has to be processed as required under section 53 of the universities act, section 53(5) of the universities act gives power to the university to place the application before the government and the government has to take a decision under section 53(5) either rejecting the application or granting the same, of course, in case of refusal, the government has to give reason. 'public policy' is not defined in the universities act. when a duty is cast on the -government to take a decision, it is needless to state that such duty shall be exercised fairly and in a reasonable manner without giving room for arbitrariness or discrimination. otherwise, such action will violate the equality clause as enshrined under article 14 of the constitution... even assuming that there is a policy the same shall not be mistaken that it can be extended for ever as is done in the cases of the petitioners by saying that no more medical colleges are required during the plan period.... discretion to be exercised by the authorities concerned and while considering the requests of the petitioners, it shall be guided by law and it must be governed by rule and not by humor and it must not be vague and fanciful. ;it has to be said that the approach of the government in not considering the applications of the petitioners for according permission to start medical colleges by putting forth the theory of public policy, a mere pretence. however laudable the policy put forth by the government to refuse permission to start medical college, the conduct of the government preferring a few and prohibiting others is arbitrary and not in a fair and reasonable manner. further, refusal to grant permission or not taking any decision on such applications made by the petitioners is in contravention of section 53(5) of the universities act. in fact, in most of the cases, the concerned universities and the local inspection committees were satisfied with the need and requirements and made recommendations for granting permission. but, while refusing the permission, the government failed to give any reasons which are tenable and stand to reason. when it is not in dispute that the acts of the government shall always be fair, but different yardsticks have been applied by the government in granting permission to some institutions and refusing the same to the petitioners, it has to be said that the acts of the government are clear cases of arbitrariness and unreasonable..... in the light of the principles laid down by the supreme court and this court, the only conclusion that can be drawn is that the orders and the approach of the government are not only in contravention of section 53(5) of the universities act, but also they are arbitrary, unfair and unreasonable and thus violative of article 14 of the constitution of india. even though a duty is cast on the authorities to act fairly, reasonably and in impartial manner, in the case on hand, the authorities exercised powers in highly fanciful and discriminatory manner and according to their convenience. hence it has to be said that the acts of the government or its authorities in not considering the petitioner's requests for permission to start medical colleges are clear cases of legal malafides or colourable exercise of power conferred on them. - clause 2.2(b): [dr. k. bhakthavatsala, j] benefit under the scheme petitioners request for grant of pension under the scheme was rejected - non-fulfilment of the eligibility criteria by the petitioner- held, since the petitioner has not fulfilled the required conditions as per the swatantra sainik sanman pension scheme, specifically clause 2.2(b) of the swatantra sainik sanman pension scheme, the petitioner is not entitled for the pension. merely because he has been granted pension under the state scheme, is not ipso facto entitled to central pension under the swatantra sainik sanman pension scheme. in short, the petitioner does not fulfil the requisite conditions so as to seek central pension under the swatantra sainik sanman pension scheme. on facts, held, according to the petitioner, he was detained at srirangapatnam jail on account of his participation in the freedom movement from 25.10.1942 to 30.4.1943. but the petitioner has not produced the acceptable evidence before the authorities concerned to claim the pension under the swatantra sainik sanman pension scheme. hence, rejection of application of the petitioner is justified. - on the basis of the said report, the university of mangalore recommended to the government the case of the petitioner to establish and administer a medical college. the same came to be rejected again by the respondent by its endorsement dated 18.7.1988. again for the academic year 1989-90 the society presented an application for the same purpose which was again recommended by the affiliation commission. societies medical college, bijapur 130 160 30 plus 235 8. siddarthamedical college has been permitted to admit in 1989 150 totalincrease given in the year 1989 to various colleges 385 further, the government have accepted the recommendations of the universities and are ordered to allot the additional seats to the following colleges as recommended by the respective universities:orderhanumanthappa, j. 1. since the question of law involved in all these petitions is common, all these petitions are clubbed together and a common order is passed.2. a few facts in each case are as follows:w.p.no. 7385 of 1989: the case of the petitioners is that the 1st petitioner is a linguistic minority institution of tulu speaking community having its office at nitte, karkala taluk, dakshina kannada district. the said society has been started with an intention to impart education to its members. it established and is administering number of colleges and institutions, to name a few, dental college at mangalore, pharmacy college at deralakatte in mangalore taluk, engineering college, polytechnic, first grade college and one junior college and one high school at nitte, karkala taluk. all the institutions are recognised by the government of karnataka. the institutions of the petitioners are imparting very high standard of education to its students. the students are getting high ranks in different examinations conducted. all the colleges referred to above are affiliated to mangalore university. as the institution is a philanthropic one, it thought of starting a medical college in dakshina kannada district. under article 30 of the constitution of india the society being a linguistic minority institution has a right of establishing and administering educational institutions of its choice. hence, in the year 1987-88 the petitioner gave an application to the respondent seeking affiliation and permission to start a medical college. on 4.1.1987 the local inspection-committee held an inspection and submitted a favorable report. on the basis of the said report, the university of mangalore recommended to the government the case of the petitioner to establish and administer a medical college. however, the respondent by its endorsement dated 15.7.1987 rejected the request of the petitioners. for the academic year 1988-89 the society once again submitted its application seeking permission to start a medical college. the same came to be rejected again by the respondent by its endorsement dated 18.7.1988. again for the academic year 1989-90 the society presented an application for the same purpose which was again recommended by the affiliation commission. but no action was taken. in the meanwhile, the petitioners came to know that the government had taken a policy decision not to grant permission to start any more medical colleges in the state on the ground that there are sufficient number of medical colleges in the state and thus there is no need to have any more medical colleges in the state. when the third application of the petitioners was pending, 3 medical colleges in the state approached the indian medical council to permit them to double their in-take and the indian medical council in turn accepted their request. as the decision to increase the in-take of some of the private medical colleges amounted to granting permission to start new medical colleges, the petitioners went on requesting the government to grant the permission as sought for. the petitioners also brought to the notice of the government that the society has got all the infra-structures, necessary finance, building, land and necessary staff to teach m.b.b.s. course as the staff is already teaching the dental college students. the petitioners also brought to the notice of the government that there is no prohibition in the karnataka state universities act to start a medical college. it is also explained by the petitioners that in case permission is accorded they would establish and administer an hospital as per the standard of the indian medical council within 18 months from the date of starling the medical college. in addition to this the petitioners explained that in view of the decision rendered by the supreme court in siddartha education trust's case, possessing own hospital during the pre-clinical course is not a must; but it is sufficient if the concerned institution undertakes to provide clinical facilities within 18 months of starting the medical college. for the reasons given above the petitioners seek for the following reliefs: 'therefore, it is prayed that this hon'ble court be pleased to issue a) a writ in the nature of mandamus directing the respondent state to permit the petitioner trust to establish and administer a medical college which would impart education leading to a degree in m.b.b.s. for the academic year 1989-90; b) issue such other writ, or direction or order as this hon'ble court deems fit in the circumstances of the case in the interest of justice.' the government filed its statement of objections. the stand of the government in the statement of objections is as follows:there is no merit in any one of the contentions raised by the petitioner. if the institution is a minority institution, it may have a right to establish and administer medical college but granting permission or affiliation is not just a formality. the government took a policy decision during the year 1989-90 not to sanction any new medical college for the reason that there are already 4 government medical colleges and 14 private medical colleges in the state, the private medical colleges are not upto the standards prescribed by the indian medical council. most of the private medical colleges depend upon the government clinical facilities. because of non-availability of clinical facilities, most of the private medical colleges are depending on the government hospitals and government clinical facilities. government took the decision not to grant any more medical colleges in the state. but, that does not mean a permanent prohibition for seeking permission. the restriction imposed by way of policy decision is not only in the interest of the state but also in the interest of minority institutions. it is the state which has the right to bring regulatory measures on the right of the minority institutions under article 30 of the constitution of india. refusal to grant permission to start medical colleges is in tune with article 41 of the constitution. the policy formulated by the state is the sovereign power of the state and the same cannot be subjected to the provisions of the act. during the period 1989-90 the government had not permitted to establish any more medical colleges on the ground that there is already unemployment problem in the state. the policy decision taken by the government is with the main object to see that standard of education is maintained on the one hand and that the unemployment problem of the doctors is not aggravated on the other hand. the petitioners/society has neither the required infra-structure, facilities, let alone the financial capacity. secondly, the government of india has taken a decision not to have any more medical colleges in the country. thus, the respondent submits that refusal to grant permission is neither arbitrary or unreasonable. nor can it be said that the action of the government is not in conformity with article 14 or article 19(1)(g) of the constitution.subsequent to filing the statement of objections, the petitioners, filed a reply statement contending that the reasons given by the respondent to refuse to grant permission is quite arbitrary. according to the petitioners, the government granted permission to increase the in-take of some of the private medical colleges in the state and the said permission was granted when the application submitted by the petitioners seeking permission to start a medical college was pending, the said increase was granted to various private medical colleges in the state on different dates, viz., 14.2.1989, 29.7.1989, 25.11.1989, 1.10.1990, 15.2.1991 and 16.10.1991 and the total increase of intake of private medical colleges was about 730 which may roughly come to granting 7 more medical colleges. the information relating to increase in the intake of different medical colleges on the dates mentioned above is as follows:collegespermittedintake as existedincreasedintake permitted in the year 1989totalincreased by godated14.2.89by go dated 29.7.891.dr.ambedkar medical college50100502.shridevaraj urs medical college, kolar130150203.a)kasturaba medical college, manipal section22025030b)kasturaba medical college, mangalore section200250 250504.j.j.m.medical college, davanagere240270 250305.ai-aminmedical college, bijapur12012556.j.n.medical college, belgaum155175207.b.l.d.e.societies medical college, bijapur13016030 plus2358.siddarthamedical college has been permitted to admit in 1989 150 totalincrease given in the year 1989 to various colleges 385further, the government have accepted the recommendations of the universities and are ordered to allot the additional seats to the following colleges as recommended by the respective universities:si. no.name ofthe college seatsalready sanctioned for the year 90-91additionalseats now sanctionedtotal1. kasturabamedical college, mangalore250503002. j.j.m.medical college, davanagere250503003. b.l.d.e.a.medical college, bijapur130301604. m.r.medical college, gulbarga15025175on 15.2.1991 once again increase in intake was permitted from 45 to 70 to 2 different colleges, further by the government order dated 16.10.1991 the government increased the intake in private medical colleges upto 120. the increase of such intake, when the petitioners' application was pending, contrary to the order passed by this court in writ appeal no. 708 of 1990 dated 8.11.1990 wherein this court while making reference to some of the decisions had held that the request has been ordered to be re-considered on the basis of need of medical college existing on date of application for permission to start medical college irrespective of what had happened between the date of application and the endorsement dated 4.10.1981 at annexure r-6, apart from this, government had rejected the request of kasturba medical college, mangalore branch for splitting up of existing college into two sections on the ground that it amounts to establishing of a new college. further the government had also observed that government had already taken a policy decision not to start any new medical college during 1989-90. similar were the orders in the case of j.j. medical college, davangere, and devaraj urs medical college, kolar, within no, time government gave a go by to its earlier stand, permitted to split the kasturba medical college into two, allowed to double the intake of j.j.m. college, davangere, and granted permission to devaraj urs medical college, kolar, to start medical college at kolar. it is also contended in the reply statement that the action of the government in not considering the petitioner's request is contrary to the decision rendered by the supreme court in shri siddartha educational society and anr. v. chief secretary to the government of karnataka and ors., w.p. no. 1240 of 1987 dd 6-1-1988 and in siddartha educational society and anr. v. chief secretary of state of karnataka and ors., c.m.p. no. 5414 of 1988 dd 21-4-1988, which are extracted below:'annexure r-3in the supreme court of india civil appellate jurisdictionwrit petition no. 1240 of 1987 shri siddartha educationalsociety and anr. petitioners- versus -chief secretary to thegovernment of karnatakaand ors. respondents.

Judgment:
ORDER

Hanumanthappa, J.

1. Since the question of law involved in all these Petitions is common, all these Petitions are clubbed together and a common order is passed.

2. A few facts in each case are as follows:

W.P.No. 7385 of 1989: The case of the petitioners is that the 1st petitioner is a linguistic minority institution of Tulu speaking community having its office at Nitte, Karkala Taluk, Dakshina Kannada District. The said Society has been started with an intention to impart education to its members. It established and is administering number of colleges and institutions, to name a few, Dental College at Mangalore, Pharmacy College at Deralakatte in Mangalore Taluk, Engineering College, Polytechnic, First Grade College and one Junior College and one High School at Nitte, Karkala Taluk. All the institutions are recognised by the Government of Karnataka. The institutions of the petitioners are imparting very high standard of education to its students. The students are getting high ranks in different examinations conducted. All the colleges referred to above are affiliated to Mangalore University. As the institution is a philanthropic one, it thought of starting a Medical College in Dakshina Kannada District. Under Article 30 of the Constitution of India the Society being a linguistic minority institution has a right of establishing and administering educational institutions of its choice. Hence, in the year 1987-88 the petitioner gave an application to the respondent seeking affiliation and permission to start a Medical College. On 4.1.1987 the Local Inspection-Committee held an inspection and submitted a favorable report. On the basis of the said report, the University of Mangalore recommended to the Government the case of the petitioner to establish and administer a Medical College. However, the respondent by its endorsement dated 15.7.1987 rejected the request of the petitioners. For the academic year 1988-89 the Society once again submitted its application seeking permission to start a Medical College. The same came to be rejected again by the respondent by its endorsement dated 18.7.1988. Again for the academic year 1989-90 the Society presented an application for the same purpose which was again recommended by the affiliation Commission. But no action was taken. In the meanwhile, the petitioners came to know that the Government had taken a policy decision not to grant permission to start any more Medical Colleges in the State on the ground that there are sufficient number of Medical Colleges in the State and thus there is no need to have any more Medical Colleges in the State. When the third application of the petitioners was pending, 3 Medical Colleges in the State approached the Indian Medical Council to permit them to double their in-take and the Indian Medical Council in turn accepted their request. As the decision to increase the in-take of some of the Private Medical Colleges amounted to granting permission to start new Medical Colleges, the petitioners went on requesting the Government to grant the permission as sought for. The petitioners also brought to the notice of the Government that the Society has got all the infra-structures, necessary finance, building, land and necessary staff to teach M.B.B.S. course as the staff is already teaching the Dental College students. The petitioners also brought to the notice of the Government that there is no prohibition in the Karnataka State Universities Act to start a Medical College. It is also explained by the petitioners that in case permission is accorded they would establish and administer an hospital as per the standard of the Indian Medical Council within 18 months from the date of starling the Medical College. In addition to this the petitioners explained that in view of the decision rendered by the Supreme Court in Siddartha Education Trust's case, possessing own hospital during the pre-clinical course is not a must; but it is sufficient if the concerned institution undertakes to provide clinical facilities within 18 months of starting the Medical College. For the reasons given above the petitioners seek for the following reliefs:

'Therefore, it is prayed that this Hon'ble Court be pleased to issue

a) A writ in the nature of mandamus directing the respondent State to permit the petitioner Trust to establish and administer a Medical College which would impart education leading to a degree in M.B.B.S. for the academic year 1989-90;

b) Issue such other writ, or direction or order as this Hon'ble Court deems fit in the circumstances of the case in the interest of justice.'

The Government filed its statement of objections. The stand of the Government in the statement of objections is as follows:

There is no merit in any one of the contentions raised by the petitioner. If the institution is a minority institution, it may have a right to establish and administer Medical College but granting permission or affiliation is not just a formality. The Government took a policy decision during the year 1989-90 not to sanction any new Medical College for the reason that there are already 4 Government Medical Colleges and 14 Private Medical Colleges in the State, The Private Medical Colleges are not upto the standards prescribed by the Indian Medical Council. Most of the Private Medical Colleges depend upon the Government clinical facilities. Because of non-availability of clinical facilities, most of the Private Medical Colleges are depending on the Government Hospitals and Government Clinical facilities. Government took the decision not to grant any more Medical Colleges in the State. But, that does not mean a permanent prohibition for seeking permission. The restriction imposed by way of policy decision is not only in the interest of the State but also in the interest of minority institutions. It is the State which has the right to bring regulatory measures on the right of the minority institutions under Article 30 of the Constitution of India. Refusal to grant permission to start Medical Colleges is in tune with Article 41 of the Constitution. The policy formulated by the State is the sovereign power of the State and the same cannot be subjected to the provisions of the Act. During the period 1989-90 the Government had not permitted to establish any more Medical Colleges on the ground that there is already unemployment problem in the State. The policy decision taken by the Government is with the main object to see that standard of education is maintained on the one hand and that the unemployment problem of the Doctors is not aggravated on the other hand. The petitioners/Society has neither the required infra-structure, facilities, let alone the financial capacity. Secondly, the Government of India has taken a decision not to have any more Medical Colleges in the Country. Thus, the respondent submits that refusal to grant permission is neither arbitrary or unreasonable. Nor can it be said that the action of the Government is not in conformity with Article 14 or Article 19(1)(g) of the Constitution.

Subsequent to filing the Statement of Objections, the petitioners, filed a Reply Statement contending that the reasons given by the Respondent to refuse to grant permission is quite arbitrary. According to the petitioners, the Government granted permission to increase the in-take of some of the Private Medical Colleges in the State and the said permission was granted when the application submitted by the petitioners seeking permission to start a Medical College was pending, The said increase was granted to various Private Medical Colleges in the State on different dates, viz., 14.2.1989, 29.7.1989, 25.11.1989, 1.10.1990, 15.2.1991 and 16.10.1991 and the total increase of intake of Private Medical Colleges was about 730 which may roughly come to granting 7 more Medical Colleges. The information relating to increase in the intake of different Medical Colleges on the dates mentioned above is as follows:

Colleges

Permittedintake as existed

Increasedintake permitted in the year 1989

Totalincreased

By GO

dated

14.2.89

By GO

dated

29.7.89

1.

Dr.Ambedkar Medical College

50

100

50

2.

ShriDevaraj Urs Medical College, Kolar

130

150

20

3.

a)Kasturaba Medical College, Manipal Section

220

250

30

b)Kasturaba Medical College, Mangalore Section

200

250

250

50

4.

J.J.M.Medical College, Davanagere

240

270

250

30

5.

AI-AminMedical College, Bijapur

120

125

5

6.

J.N.Medical College, Belgaum

155

175

20

7.

B.L.D.E.Societies Medical College, Bijapur

130

160

30

PLUS

235

8.

SiddarthaMedical College has been permitted to admit in 1989

150

Totalincrease given in the year 1989 to various colleges

385

Further, the Government have accepted the recommendations of the Universities and are ordered to allot the additional seats to the following colleges as recommended by the respective Universities:

SI. No.

Name ofthe college

Seatsalready sanctioned for the year 90-91

Additionalseats now sanctioned

Total

1.

KasturabaMedical College, Mangalore

250

50

300

2.

J.J.M.Medical College, Davanagere

250

50

300

3.

B.L.D.E.A.Medical College, Bijapur

130

30

160

4.

M.R.Medical College, Gulbarga

150

25

175

On 15.2.1991 once again increase in intake was permitted from 45 to 70 to 2 different Colleges, Further by the Government Order dated 16.10.1991 the Government increased the intake in Private Medical Colleges upto 120. The increase of such intake, when the petitioners' application was pending, contrary to the order passed by this Court in Writ Appeal No. 708 of 1990 dated 8.11.1990 wherein this Court while making reference to some of the decisions had held that the request has been ordered to be re-considered on the basis of need of Medical College existing on date of application for permission to start Medical College irrespective of what had happened between the date of application and the endorsement dated 4.10.1981 at Annexure R-6, Apart from this, Government had rejected the request of Kasturba Medical College, Mangalore Branch for splitting up of existing college into two sections on the ground that It amounts to establishing of a new college. Further the Government had also observed that government had already taken a policy decision not to start any new Medical College during 1989-90. Similar were the orders in the case of J.J. Medical College, Davangere, and Devaraj Urs Medical College, Kolar, Within no, time Government gave a go by to its earlier stand, permitted to split the Kasturba Medical College into two, allowed to double the intake of J.J.M. College, Davangere, and granted permission to Devaraj Urs Medical College, Kolar, to start Medical College at Kolar. It is also contended in the Reply Statement that the action of the Government in not considering the petitioner's request is contrary to the Decision rendered by the Supreme Court in SHRI SIDDARTHA EDUCATIONAL SOCIETY AND ANR. v. CHIEF SECRETARY TO THE GOVERNMENT OF KARNATAKA AND ORS., W.P. No. 1240 of 1987 DD 6-1-1988 and in SIDDARTHA EDUCATIONAL SOCIETY AND ANR. v. CHIEF SECRETARY OF STATE OF KARNATAKA AND ORS., C.M.P. No. 5414 of 1988 DD 21-4-1988, which are extracted below:

'ANNEXURE R-3

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

WRIT PETITION No. 1240 OF 1987

Shri Siddartha EducationalSociety and Anr. PETITIONERS- Versus -Chief Secretary to theGovernment of Karnatakaand Ors. RESPONDENTS.