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Judgment
P.V.Kunhikrishnan, J
The petitioner is a Dental Science student of Sri Sankara Dental College, a self financing Dental College situated at Thiruvananthapuram. The petitioner challenges Exts.P1 and P2 Government Orders in this writ petition. The petitioner was admitted into the 3rd respondent College in Government merit list in the year 2016 in OBC category. It is submitted that the petitioner belongs to non-creamy layer. The management of the 3rd respondent College is a member of All Kerala Self Financing Dental College Management Consortium. The said consortium had a seat sharing agreement with the Government for admissions in 2016 and Ext.P1 is the Government Order. As per the said agreement, 50% of the seats can be filled up by the management and 50% is to be filled up based on the allotment by the Commissioner for Entrance Exams. As per Clause 7(b) of Ext.P1, 26% (i.e., 13 candidates) belonging to the SEBC category shall pay an annual fee of Rs.44,000/- each and that the candidates shall be selected on the basis of the rank. Thus, the total number of candidates eligible for fee concession, according to the petitioner, is 7 (LIG) + 13 (SEBC) = 20. All other candidates shall pay an annual tuition fee of Rs.2,10,000/-. The fees of SC/ST candidates would be paid by the Government. From among the management quota students, 35% shall pay Rs.5,00,000/- as annual fee and Rs.6,00,000/- for NRI candidates. The seats under the management quota in the 3rd respondent college was not full in that year and therefore, the respondent College offered to the Government 35 seats from among the quota also to be filled by allotment by the Commissioner. Accordingly, spot allotments were made and the seats were filled. University registered all of them and Ext.P3 list was published. The list clearly shows that the petitioner was admitted on 22.09.2016. On 04.12.2017, the Commissioner published a list of candidates, who were eligible for fee concession in respondent College. Ext.P4 is the list. The list contains 34 candidates, wherein the petitioner was 25th in the list. Aggrieved by Ext.P4 list dated 04.12.2017, the respondent College approached this Court by filing a writ petition as WP(C) No.33243 of 2019, and this Court allowed the writ petition and observed that as per Ext.P1 Government Order, the respondent College is obliged to give fee concession only to 20 candidates. Accordingly, the Commissioner for Entrance Exams was directed to provide the name of students, who are eligible for concession. Ext.P5 is the judgment. The Commissioner of Entrance Examinations, complying with Ext.P5 order, issued a revised list of 20 candidates eligible for fee concession as evident by Ext.P6, in which the petitioner was 20th candidates. The candidates, who were aggrieved by Ext.P5 order dated 08.03.2021 preferred an appeal before the Division Bench of this Court. The Division Bench also dismissed the writ appeal as evident by Ext.P7. The petitioner also a party in the writ petition and writ appeal. Subsequently, the petitioner received Ext.P2 notice from the Entrance Commissioner stating that the petitioner was removed from Ext.P6 list of 20 candidates and the 5th respondent is substituted in the place of petitioner for fee concession. The petitioner is not challenging the fee concession allotted to the 5th respondent in this writ petition by replacing her. She is now challenging clause 7(b) of Ext.P1 and the prayer is to declare the same as ultravires to the Constitution of India. There are other connected reliefs also in the writ petition. The reliefs in the writ petition are extracted hereunder:
“a) To issue an order or direction to quash Clause 7(b) of Ext.P-1 agreement/order and to declare the clause as ‘ultra vires’ to the Constitution of India.
b) To quash Exhibit P-2 order/notice issued Respondent No.1 removing the petitioner from the list of candidates eligible for fee concession.
c) To direct the 1st respondent to quash Exhibit P-6 list and to issue fresh list of 20 candidates who are eligible for fee concession based on income as the criteria.
d) To declare the petitioner’s right to avail fee concession and to collect only such fee as the petitioner is required to pay under the fee concession.
e) Any other relief, order or direction this court may deem fit and proper under the facts and circumstances of this case.”
Heard Adv.Sanil E for the petitioner and the learned Senior Counsel Adv.Kurian George Kannanthanam, instructed by his retaining counsel, for the 3rd respondent. I also heard Adv.P.G. Pramod for the official respondents and Adv.C.Unnikrishnan (Kollam) for the additional 5th respondent.
The counsel for the petitioner reiterated his contentions in the writ petition. The counsel also filed a detailed argument note, after reserving the case for judgment.
The Senior Counsel who appeared for the 3rd respondent argued the matter based on the counter affidavit filed by his party. The Senior Counsel submitted that even if the contentions of the petitioner are accepted, a perusal of Ext.R3(c) would show that the annual income of the petitioner is Rs.78,000/-whereas the annual income of the 5th respondent is Rs.60,000/-. That itself shows that the 5th respondent is the eligible candidate. The learned Government Pleader and the learned Senior Counsel submitted that the petitioner is challenging Ext.P1, which is a Government Order passed in the year 2016. They submitted that at this distance of time, this Court may not be entertain the contentions of the petitioner.
In the argument note submitted by the petitioner, different contentions are raised. According to the petitioner, the fee concession is not a reward but should be an affirmative action. It is stated in the argument note that the classification based on rank in Clause 7(b) of Ext.P1 Government Order is violative of Article 14 of the Constitution. According to the petitioner, the fee concession should be on the basis of economic disability. It is submitted that delivering economic and social justice is the singular objective of giving fee concession to students belonging to SEBC category. According to the petitioner, classification based on rank is arbitrary and clearly violates Article 14 of the Constitution. It is submitted in the argument note that Clause 7(b) of Ext.P1 is not based on any rational principle and it denies equality as likes are not treated alike. It is also submitted that the classification based on rank do not pass the test of reasonable classification. According to the petitioner, clause 7(b) violates the test of intelligible differential since it fails to distinguish persons that are grouped from others that are left out of the group. It is the definite case of the petitioner that the classification based on rank do not have any nexus with the object to be achieved. The counsel also relied on the judgment of the Apex Court in Indra Sawhney v. Union of India and Others [1992 KHC 725]. The counsel relied on paragraphs 5, 493, 494, 524, 556 and 683. According to the counsel for the petitioner, giving fee concession to non-SEBC, i.e., creamy layer, is violative of Article 15(4) of the Constitution. It is also submitted that the fee concession to SEBC students violates the principles laid down by the Apex Court in Indra Sawhney’s case. Paragraph 88, 506, 528, 612, 674, 694 etc., are relied on by the learned counsel to canvass the above position. The counsel also takes me through the preamble of the Constitution and various other Articles of the Constitution to substantiate his contentions. The counsel also argued vehemently based on the various contentions raised in the argument note.
The short point to be decided in this writ petition is whether the petitioner is entitled fee concession or not. The petitioner is not challenging the order issued by the 1st respondent, by which the 5th respondent is substituted in the place of the petitioner as serial No.20 in the revised list of candidates, who are entitled for fee concession. It is conceded by the counsel. In other words, the petitioner has no grievance for substituting the 5th respondent in the place of the petitioner by Ext P2 order. It is also an admitted fact that the respondent College filed WP(C) No.33243 of 2019, in which the petitioner was a party. That writ petition was dismissed on 08.03.2021. The relevant portion of the judgment is extracted hereunder:
“11. I have heard the learned Senior Counsel Sri. Kurian George Kannanthanam assisted by Sri. P.M. Saneer, the counsel for the petitioner, and the learned Special Government pleader Sri. M.A. Asif representing respondents 1 and 2. Though notices were served, respondents 3 to 36 did not opt to appear and contest the case.
The fee structure for BDS courses in Self Financing Colleges is governed by a consensual agreement entered into by the All Kerala Self Financing Dental College Management Consortium and the Government of Kerala. Ext.P1 Government Order contains the fees to be levied by the Colleges. Paragraph 7 of Ext.P1 Government Order prescribing the fee structure reads as follows:
“The member colleges agreed to collect annual fees at the following concessional rates from the students admitted under the 50% Government merit quota during the entire course period:
a. 14% of the candidates from among those allotted by the Commissioner for Entrance Examinations in each Institution coming under BPL families as per Kerala State norms irrespective of rank of category need only pay an annual tuition of `23,000/- (Rupees twenty three thousand only). If enough number of candidates belonging to BPL category as above are not available, the balance number of candidates will be allowed concessional fees of Rs.23,000/- (Rupees twenty three thousand only) per annum to be selected from among those allotted by the Commissioner for Entrance Examination in each institution from those having lower family income, irrespective rank or category with the total number of BPL student eligible for concessional fees not exceeding 14% as above. However, SC/ST category of candidates, who already enjoy fee concession benefits will not be considered for the above purpose.
b. 26% of candidates who have been allowed SEBC status by the Commissioner for Entrance Examination in each institution shall pay an annual tuition fee of Rs.44,000/- Rupees forty four thousand only). They will be selected on the basis of the rank. However, if the required number of SEBC candidates is not available among the students allotted by the CEE in the institution, the remaining number of candidates will be selected from among the general category on the basis of income, irrespective of rank or category as explained in clause (a), with the total number of students eligible for concessional fee not exceeding 26% as above.
c. The same principle as explained in clause (a), (b) is applicable to the minority institutions also.
d. All other candidates as explained in clause (a), (b) & SC/ST shall pay an annual tuition fee of Rs.2,10,000/-(Rupees two lakhs ten thousand only). The fee benefits will be granted only after the closure of allotments to Private Self Financing Dental Colleges. Hence candidates (except SC/ST) allotted o these institutions will have to remit the fee of Rs.2,10,000/-provisionally at the time of the allotment directly to the Member Colleges. The CEE will deduct only Rs.10,000/- from the students mentioned above and this amount will be transferred to the Member Colleges within 45 days of admission, failing which the Member Colleges can claim interest on the payment.
e. Annual fee for SC/ST students shall be paid by the Government to the concerned college, at the rate of uniform fees fixed by the Government.”
In view of paragraph 7, the liability of the petitioner to extend fee concession would only be to 40% of the Merit Quota students, out of the 50% Government Quota. Out of the 100 students admitted to the BDS Course in the year 2016- 017, students eligible for fee concession would therefore be 20.
The stand of the 2nd respondent is that the Government is giving fee concession on a percentage basis to students admitted under Merit Quota and hence the petitioner also is bound to provide fee concession on a percentage basis, on the students allotted by the Government. The said stand is unacceptable for more than one reason.
Ext.P1 G.O. provides that 50% of the seats in the Self Financing Colleges are to be filled up by Merit Quota candidates allotted by the Government and fee concession is to be given to 14% BPL candidates and 24% SEBC students. Therefore, relying on Ext.P1 G.O., respondents 1 and 2 cannot take a stand that the petitioner is bound to extend the fee concession to students exceeding the percentage prescribed by Ext.P1.
It is true that in addition to the 50% Merit Quota allotments made by the 2nd respondent, 34 students were admitted in the College on the basis of spot admission made at the instance of the 2nd respondent. Ext.P5 is the Notification issued by the 2nd respondent for spot admission. In Ext.P5, the 2nd respondent himself has intimated the students that students getting allotment under the spot admission in Self Financing Dental Colleges will have to pay Rs.2,10,000/- as tuition fee. Therefore, it is evident that respondents 1 and 2 also were aware that 14 students, who were admitted in addition to 20 students who were entitled to fee concession under Ext.P10, are liable to pay annual tuition fee at the rate of Rs.2,10,000/-.
The petitioner would have collected the said amount of annual tuition fee from 14 out of the 34 students allotted by the 2nd respondent, if the petitioner knew who are the students not eligible for fee concession. This is only within the knowledge of the 2nd respondent. The petitioner requested the 2nd respondent to clarify. But, as is seen from Ext.P12, the 2nd respondent gave vague reply.
The petitioner is a Self Financing Dental College, functioning under a regulatory framework, levying fees fixed under an agreement with the Government. Forcing the petitioner to extend fees concession to students over and above the prescription, cannot stand the scrutiny of law.
In the circumstances, it is declared that the petitioner is obliged to give fee concession under Ext.P1 only to 20 candidates and that the petitioner is entitled to collect the full fee from the remaining 14 candidates included in Ext.P7 list for the period from the year 2016–2017 onwards. The 2nd respondent is directed to provide to the petitioner the name of 20 students, who are eligible for fee concession, and instruct the remaining 14 ineligible candidates in Ext.P7 list to remit annual fee at the rate of Rs.2,10,000/- from the year of admission till the completion of the Course.
As the academic year and the course of the students are coming to an end by 31.03.2021, the 2nd respondent is directed to comply with the aforesaid directions at the earliest and at any rate within a period of two weeks.
Writ petition is disposed of as above.”
Ext.P5 judgment was confirmed by the Division Bench as evident by Ext.P7 judgment. The petitioner has no case during the pendency of the earlier writ petition that Clause 7(b) of Ext.P1 Government Order is unconstitutional even though she is party in the writ petition. The contention about the constitutional validity of clause 7(b) of Ext.P1 came up only when the 1st respondent issued Ext.P2 on 22.10.2021. As I observed earlier, the petitioner is not challenging the substitution of the 5th respondent in the place of the petitioner in the revised list of eligible candidates for fee concession. Therefore, the contention of the petitioner cannot be accepted at this belated stage. Moreover, as pointed out by the learned Senior Counsel for the respondent College that even if the contention of the petitioner is accepted, a perusal of Ext.R3(c) would show that the annual income of the 5th respondent is far below when compared to the annual income of the petitioner. The petitioner contends that the above argument is erroneous since the entire case of the petitioner is that only economically weaker students or non-creamy layer students shall avail a benefit of fee concession. Clause 4 in paragraph VIII in the argument note submitted by the petitioner is extracted hereunder:
“4. The argument that the Respondent No.5 has better rank and therefore the Exhibit P2 notice is valid is erroneous
It is a matter of record that the Respondent no.5 has better rank and lesser income than the petitioner. But this argument is erroneous since the entire premise of the petition is that only economically weaker students or non creamy layer students shall avail the benefits of fee concession. The petition clearly points out that there are students belonging to creamy layer category present in the Exhibit P6 list of students eligible for the fee concession. The prayer is to quash this list and to issue a fresh list with only non creamy layer students who are truly deserving of fee concession.”
From the above submission in the argument note itself, it is clear that the petitioner has no individual grievance in this case but she want to quash the list and to issue a fresh list with only non creamy layer students who deserve fee concession. Ext.P1 was issued in the year 2016 and Ext.P2 was issued on 22.10.2021. Admittedly, the petitioner has no grievance about the substitution of the 5th respondent in the place of the petitioner based on Ext.P2 order.
In such circumstances, according to me, there is no merit in this writ petition. Therefore, this writ petition fails and it is dismissed.