Holding

The Court held that the 50% foreign‑student permission is not enforceable for 1993‑94, imposed a 15% quota for NRIs/foreign students, fixed provisional fee structures, and barred private managements from admitting 50% of seats of their own choice.

Summary

The Supreme Court was asked to resolve the impasse over admission and fee structures in private professional colleges after the Government of India had permitted admission of foreign students up to 50% of seats. The Court held that, in view of the J.P. Unnikrishnan judgment, such permission could not be enforced for the 1993‑94 academic year and that Indian students must be given priority. It fixed a transitional quota of 15% for NRIs and foreign students and rejected the private managements' demand to admit 50% of seats of their own choice. Provisional fee structures were prescribed for medical, dental, nursing and other professional colleges, categorising medical colleges into three classes with fees of Rs.1,40,000, Rs.1,20,000 and Rs.1,00,000 per annum respectively. The requirement of a bank guarantee or cash deposit was deleted, and the Court directed that all seats be filled by October 31, 1993, with the State and Central Governments ensuring implementation under Article 144.

Issues considered

The enforceability of the Government of India's permission to admit foreign students up to 50% of seats for the 1993‑94 academic year.
The permissible quota for NRIs/foreign students in private professional colleges for the transition year.
The appropriate fee structure for payment seats in private medical, dental, nursing and other professional colleges pending final fixation.
Whether private college managements may admit 50% of seats of their own choice.
The validity of the bank‑guarantee requirement under the Unnikrishnan scheme.
The role of Article 144 in ensuring implementation of the Court's directions.

Subjects

private professional collegesadmission feeforeign studentsNRI quotaArticle 144fee structurecapitation feeSupreme CourtUnnikrishnan judgmentmedical education

Judgment

/
T.M.A. PAI FOUNDATION AND ORS. ETC. ETC. A
v.
STATE OF KARNATAKA AND ORS. ETC. ETC.

OCTOBER 7, 1993

(S. RATNAVEL PANDIAN, S.C. AGRAWAL, S. MOHAN, B
B.P. JEEVAN REDDY AND S.P. BHARUCHA, JJ]

Education--Private Professional and Technical Colleges Admission
Fee--Foreign Students-Permission granted by Central Government to admit
foreign students upto 50% of their intake capacity-Such permission of <UTan- C
gement will not be enforceable w.e.f. aeademic year 1993-94 in view of Un-
nikrishan 1993-94 being year of adjustment-colleges allowed to admit Non
Resident Indians N.R ..ls. and foreign students upto maximum· 15% of the
intake capacity-Basis of selection and admission for N.R./s. and foreign
students.
D
Fee strUcture-Supreme Court fixing a fee tentatively for payment seats
in Medical Colleges-For Engineering Colleges for the year 1993-94 fee fixed
by respective State Governments shall be operative-Requirement of Bank
guarantee or cash deposit provided in the scheme evolved in Unnikrishnan
deleted. E
Constitution of Indi~Article 144--l'rivate Professional College~Ad
mission Process and Fee StrUcture--Directions given in Unnikrishnan and
subsequent orders given herein to be implemented-Students to be admitted
against all free seats and payments seats on or before October 31, 1993..
F
These matters were filed before the Supreme Court for orders with
respect to the fee structure in private professional colleges and for other
appropriate orders. The fee structure evolved by the Government of States
was highlighted. Some of the private managements submitted that the fee
faxed by the State Governments was impractical and inadequate. Regard- G
ing the question of admission of foreign students, it was submitted that
for the current year (academic year 1993-94), foreign students to the extent
of 50% of the intake capacity of the medical colleges may be permitted to
be filled in by foreign students.

Disposing of the matters, this Court H
117
118 SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A HELD : 1.1. Whatever may have been the circumstances and reasons
for which the Government of India has permitted the private medical
colleges to admit foreign students to the extent of 50% it is clear that the
said permission or arrangement is not enforceable and cannot be enforced
with effect from the academic year 1993-94 in view of the judgment in J.P.
'. B Unnikrishnan. Admittedly, there is a crying need for these seats within the
country itself and it is they who must have the priority in the matter of
admission to these colleges. (127-E-F]

1.2. 1993-94 being an year of transition and adjustment, in view of
the Government of India Orders permitting admission of foreign students
C to the extent of as much as 50% it would be proper to permit the private
professional colleges to admit N.K.l's. and foreign students up to a maxi-
mum extent of 15% of the intake capacity for this year. The basis of
selection and admission for these N.R.Is and foreign students shall be the
same as indicated in Supreme Court order dated May, 1993 in Review
Petition Nos. 482/93 etc. This is a special provision made only for this year•
.D (129-C-F]
1.3. For fixing provisional fee payable for the payment seats, the
medical shall be categoriesed into three classes; ,

(i) medical colleges who have their own hospital facility.
E
(ii) Medical colleges partly utilising the facilities of the Government
hospitals anci partly their own hospitals;

(iii) Medical Colleges who do not have their own hospital facility but .
depend entirely on the Government hospital for training stUdents. (130-C]
F
For category (i) the fee payable determined at Rs. 1,40,000 per
annum, for category (ii) at Rs. 1,20,000 per annum and for category (iii)
1,00,000 per annum. (130-D]

G For Dental Colleges, the fees shall be Rs. 1,00,000 per annum for
those having their own hospital facility and Rs. 90,00,000 per annum for
colleges availing of the Government hospital facility. (130-E]

In the case of nursing colleges and colleges imparting instructions in
B.A.M.S, B.H.M.S. and B.U.M.S., the fees respectively faxed by the ap·
H propriate State Government shall be followed and .operated subject of

•
PAIFOUNDATIONv. STATE 119

course to adjustment on regular fixation by the Government of India/ap- A
propriate apex professional council. [130-F]

So far as engineering colleges are concerned, no fee need be fixed by
this Court tentatively for this year. The fee fixed by the respective State
Government shall be operative and shall be subject to the final fixation as
stated above and further subject to adjustment in later year. [130-G-H] B
1.4. The refusal of the managements of the private professional col-
leges or, for that matter, their demand that they should be permitted to
admit SO% of the students of their own choice cannot be and shall not be
conceded. In case of failure of the parties to find a reasonable way-out, the
court would be obliged to adopt coercive measures to enforce its judgment C
in Unnikrishnan and other orders in that behalf. [UO-F-G]

1.5. The directions given in Unnikrishnan and the subsequent orders
and those given herein shall be implemented and students admitted against
all the free seats and payment seats in all the professional colleges on or D
before October 31, 1993. The State Government shall take immediate and
effective steps for the above purpose. The Central Government shall ensure
the implementation of the same by issuing appropriate directions keeping
in view Article 144 of the Constitution, if found expedient or recessary. In
case, any professional college refuses to abide by the said order and direc-
tions, the State Government concerned shall bring it to the notice of this E
court immediately for appropriate orders. (131-G-H, 132-A]

J.P. Unnikrishnan v. State ofAndhra Pradesh, [1993] 1SCC645 =AIR
(1993) SC 863, relied on.

St. Stephens College v. University of Delh~ (1992) 1 SCC 558=AIR F
(1992) SC 1792, distinguished.

CIVIL ORIGINAL JURISDICTION Writ Petition (C) No.
317/1993.

Under Article 32 of the Constitution of India. G
WITH

W.P. (C) No. 442/93, 327/93, 350/93, 613/93, 463/92, 627/93, 597/93,
536193, 598/93, 626/93, 444/93, 417/93, 523/93, 474/93, 485/93, 484/93, 355/93,
525(93, 469/93, 392193, I.A. Nos. 2 & 3/93, IN SLP (C) 14437/93, W.P.(C) H
\
120 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A 629/93, 399/93, 571/93, 531/93, 603/93, I.A. 3, 4-8/93 IN C.A. 927/93,
W.P.(C) 702/93, 585/93, 628/93, 663/93, 284/93, 555/93, 343/93, 596/93,
660/93, 407/93 WITH 482/93.

Deepankar Gupta, ASG., Harish Salve, R.K. Garg, Sushil Kumar,
Kapil Sibbal, Anil B. Dewan Soli J. Sorabjee, S. Sivasubramaniam, Y.H.
B Muchhala, K. Parasaran, C.S. Vaidyanathan, Santosh Hegde, Joseph Val-
laputty, F.S. Nariman, N.N. Goswami, B.V. Acharya, Attorney General Dr.
Roxna, H.L. Tikku, Kailash Vasdev, Ms. Alpana Poddar, Ravi Wadhwani,
Ashok Grover, Raju Ramachandran, M.D. Adkar, Ejaz Maqbool, B.K.
Misra, R. Jagannatha Goulay, T.C. Sharma, P.H. Parekh, U.Sagar, P.
·C Kohli, R. Mohan, R. Nedumaran, Dr. P.B. Rao, Ranjit Kumar, H.K. Puri
P.N. Ramalingam, V. Balaji, T.M. Sampath, L.R. Singh Vikash Singh, Vijay
Chandra, Yunus Malik, K.V Vishwanathan, K.V. Mchan, S. Selvarathanam,
M. Veerappa, S.K. Kulkarni, Kh. Nobin Singh, S. Sasiprabhu, A. Jayaram,
M.K. Dua, P.R. Seetharaman, Pawan, Rathin Das, M.A. Firoz, E.M.S.
Anam, P. Parameswaran, Arun K. Sharma and B.K. Prasad for the appear-
D ing parties.

The orders of the Court were delivered

These matters were posted before us on October 4 and 5, 1993 for
E Qrders with respect to the fee structure in private professional colleges and
for other appropriate orders. We have heard the learned Solicitor General
for the Union of India, the learned Advocate General for Karnataka and
counsel for other States. In view of the non-admission of students to the
private professional colleges even by now (first week of October) we called
upon the counsel for the Union, the States and the private parties to tell
F · us the way in which the present impasse can be resolved. We pointed out
to the counsel that the refusal of the managements of the private profes-
sional colleges or, for that matter, their demand that they should be
permitted to admit 50% of the students of their own choice cannot be and
shall riot be conceded. We made it clear that in case of the failure of the
G parties to find a reasonable way-out, this Court would be obliged to adopt
coercive measures to enforce its judgment in J.P. Unnikrishnan v. State of
Andhra Pradesh, (1993) 1 S.C.C.654 and other orders in that behalf.

The learned Solicitor General appearing for the Union of India
submitted that in pursuan~ of the judgment in Unnikrishn<4f, the Central
H Government, Medical Council of India, All-India Council for TechniCal
PAI FOUNDATION v. STATE 121

Education and other similar bodies have promptly initiated the exercise for A
determining the fee structure. He placed before us the proceedings of the
meeting of the sub-committee of the Medical Council of India held on
April 12, 1993 and the affidavit filed on behalf of the All-India Council for
Technical Education (A.l.C.T.E.). The operative portion of the minutes of
the sub-committee of the l.M.C. reads thus:
B
"Keeping all the factors into mind, the Committee recommended
that the following fee structure may b-: considered:-

Rs. 80,000 to Rs. 1,00,000 per year per student Indian student
joining the institutions having their own hospitals. C

Rs. 60,000 to Rs. 80,000 from the students joining the institutions
utilising the factilities of both Govt. as well as their own hospitals.

Rs. 40,000 to Rs. 60,000 from the students joining the institutions
utilising the facilities completely as provided by Govt. hospitals. D
Fee to be charged from non-resident Indians is SS0,000 for the
whole course."

So far as the engineering colleges are concerned, the learned
Solicitor General pointed out that though the A.I.C.T.E. has not taken any
decision so far, it will, soon enough, issue reg!Jations prescribing a E
reasonable and non-disparate fee structure for different States, effective
from the academic year 1994-95. He pointed out that while the fee fixed
for payment .seats is Rs. 37,000 in Madhya Pradesh, It is Rs. 20,000 in
Karnataka and that in other States a figure in between these tWo figures
has been specified for payment seats. He submitted that for this year, this p
Court may fix a tentative fee to be adjusted in accordance with the final
fixation by the Central Government and/or the appropriate coun-
cil/authority. The learned· Solicitor General assured us that the Central
Government is fully committed to the full implementafon of the judgment
in Unnikrishnan ·and that any steps taken by this Court for implementation
of the said judgment will have the unconditional· support of the Union of G
India.

The learned Advocate General of Karnataka submitted that the
Karnataka Government has taken prompt steps for implementing the
judgment of this Court in Unnikrishnan, that the lists of free seats have H
122 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A already been published though lists of payment seats could not yet be
communicated for want of certain relevant particulars. He stated that the
State Government has .also revised the fee structure pursuant to this
Court's order dated August 18, 1993. He brought to our notice the pre~ent
stand of the managements that unless they are permitted to admit 50% of
B the students of their choice, they will not open the professional colleges
and that they prefer to close them. He brought to our notice the affidavit
filed by the Government of Karnataka in Writ Petition (C) No.663of1993
for a direction to all the private educational institutions in Karnataka to
admit the students allotted to their colleges on such conditions as may be
deemed proper by this Court. The learned Advocate General _assured us
C that the State of Karnataka is constitutionally bound to implement the said
judgment and will take all necessary steps in that behalf.

Sri. P.R. Seetharaman, 1earned counsel for the State of Tamil Nadu
stated that the Government of Tamil Nadu has since revised the fee
D chargeable in private medical colleges and has fixed it at Rs.1,58,000 per
annum. He brought to our notice the fee structure for other colleges which
we shall presently mention.

The learned counsel appearing for the State of Maharashtra brought
E to our notice the fee structure evolved by the Government of Maharashtra.

Sri. K. Parasaran, appearing for some of the private managements
submitted that no citizen• 1of this country can refuse to implement the
judgment of this Court and that the real difficulty in the way of some of
the private managements was that the fee fixed by the Goy,erru.nents of
F Karnataka and Tamil Nadu was impractical and uiadequate. I~ was not
possible to run the colleges with the said fee, submitted the ~unsel. He
attributed the delay in making admissions to the inaction and delay on the
part of the concerned governments in complying with the several directions
contained in the scheme in .Unnikrishnan.
G
S/Sri Santosh Hegde and Govind Mukhoty made a grievance of the
differential treatment between the minority institutions and non-minority
institution. While complaining about the fee structure, they concentrated
their ire against what they called the differential treatment accorded to the
H minority institutions (implicit in the order dated August is, 1993) which,
PAIFOUNDATIONv. STATE 123

according to the learned counsel, has created a lot of heart-burning among A
the managements of the non-minority professional colleges. They sub-
mitted that the Government of Karnataka has initially fixed a fee structure
which was ridiculous and that even after the orders of this Court, the fee
structure evolved is totally inadequate and insufficient for running the
private colleges. B
The sub-committee of the l.M.C has categorised the medical colleges
into three classes, as would be evident from the final recommendation
quoted hereinabove. The Government of Karnataka has also adopted the
very same categorisation but has fixed the fee in an inverse fashion. In other
words, whereas the sub-committee of the l.M.C. has recommended a C
higher-level of fee for those medical colleges have their own hospital facility
and a lesser fee for those who are availing of Government hospital facilities,
the Karnataka Government has fixed higher fee for medical colleges
without having their own medical facility and, therefore, using the Govern-
ment medical facility and lesser fee for those medical colleges which are D
having their own hospital facility.

The learned Solicitor General clarified that the fee structure recom-
mended by the sub-committee of the l.M.C. is per seat uniformly and not
merely for payment seats as understood in Unnikrishnan. We record his
statement and act on that basis. The learned Solicitor General further E
brought to our notice that for dental colleges, the Dental Council of India
has fixed the following fee structure for payment seats in the light of
Unnikrishnan:

"Annual Fee of Rs.1,00,000 for Resident Indian students studying F
in a Dental College which utilises the facilities of a Medical College
& Hospital or of a Hospital which fulfills the requirements of
D.C.I. norms.

Annual Fee of Rs.1,20,000 for Resident Indian students study-
ing in a Dental College which cannot utilise the facilities of a G
Medical College Hospital, but has to run its own Hospital fulfilling
the requirements stipulated by DC.I. norms."

We may now set out the fee structure evolved by Karnataka,
J Maharshtra and Tamil Nadu State Governments. H
124 SUPREME COURT REPORTS [1993) SUPP, 3 S.C.R.

A . KARNATAKA:
MEDICAL COLLEGES:

Rs. 65,000 p.a for medical colleges having their own hospital facility.
Rs. 75,000 p.a. for those medical colleges which are partly utilising their
B own hospital facility and partly utilising Government hospital facility. Rs.
85,000 p.a. for those medical colleges which are not having own hospital
facility. Rs. 8,000 p.a. for free seats.

Dental Colleges:

·C Rs. 40,000 p.a. for those medical colleges having their own hospital
facility and Rs. 50,000 p.a. for those who do not have their own hospital
facility and, therefore, utilise the Government hospital facility. Rs. 8,000
p.a. for free seats.

Engineering Colleges:
D
Rs. 25,000 p.a. uniformly for payment seats. Rs. 4,000 for free seats.

Nursing Colleges:

Rs. 15,000 p.a. uniformly for payment seats. Rs. 1,000 ~.a. for free seats.
E
The learned Advocate General stated that while fixing the above fee
structure, the Government has not taken into account the capital cost. The
basis for fixation, stated the learned Advocate General, is the expenditure
incurred by the Government on each student in the Government Medical
College, Banglore.
F
Sri Santosh Hegde, appearing for certain private managements
brought to our notice that where a medical college is permitted by the
Government of Karnataka to avail of the facilities of the Government
hospital, the colleges are made to pay for the same and that they also have
to provide for certain other things. This aspect has, however, not been put
G in issue before us and, hence, we express no opinion thereon.

TAMILNADU:

MEDICAL COLLEGES:

H Rs. 1,58,000 p.a. (N~ categorisation among the mediJi colleges):
PAI FOUNDATION v. STATE 125

Engineering Colleges: A
Rs. 32,000 p.a. for payment seats and Rs. 6,000 p.a. for free seats.

Dental Colleges:

Rs. 95,000 p.a. for payment seats and Rs. 5,000 p.a. for free seats.
B
The learned counsel stated that in fixing the said fee structure, the
Government has taken into account both the capital as well as recurring
costs.

MAHARASHTRA.:
c
Medical Colleges:

Rs. 1,71,000 p.a. for payment seats and Rs. 4,950 p.a. for free seats.
(No categorisation).

Dental Colleges: D
Rs. 1,30,000 p.a. for payment seats and Rs. 3,450 p.a. for free seats.

B.A.M.S. (Ayurveda):

Rs. 1,10,000 p.a. for colleges having their own hospital facility and
Rs. 90,000 p.a. for colleges without their own hospital facility. Rs. 2700 p.a. E
for free seats.

B.H.M.~. (Homoeopathic).:

Rs. 30,000 p.a. for colleges with their own. hospital facility. Rs. 22,000
p.a. for colleges without their own hospital facility and, therefore, depend- F
ing upon the government facility. Rs. 2,700 p.a. for free seats.

B.U.M.S. (Unani):

Rs. 40,000 p.a. for medical colleges with their own hospital facility
and Rs. 23,000 p.a. for colleges without their own hospital facility and, G
therefore, depending upon the government facility. Rs. 2,700 p.a. for free
seats.

Engineering Colleges:

Rs. 32,000 p.a. for payment seats. Rs. 4,000 p.a. for free seats. H
126 SUPREME COURT REPORTS [1993) SUPP. 3 S.<?.R.

A It is stated before us that .in Andhra Pradesh, the fee structure has
been evolved only for engineering colleges and not for the medical college.
(It is stated that there is only one private medical college in the State). The
fee fixed for engineering colleges is Rs. 26,000 p.a. for payment seats and
Rs. 4,000 p.a. for free seats.
B The system obtaining in Kerala appears to be altogether different
which was unfortunately not brought to our notice on August 18, 1993.
There are only two private engineering colleges in the State; said to be
Minority Educational Institutions. The system obtaining in this State ap-
pears to be that the entire fees collected by t.hese · private engineering
C colleges has to be made over: to the Government while the Government
bears the entire expenditure for running the colleges. Under this system,
the colleges were allowed to admit students of their own choice to the
extent of 15%.

D It would appear from the particulars stated above that the fee
structure evolved in Karnataka alone is at a lower level compared to .the
fee structure in Tamil Nadu and Maharashtra. In the circumstances, we are
inclined to fix a fee tentatively for these colleges in all the States. It is made
clear that the fee fixed by us herewith is only tentative and provisional in
nature and is liable to be adjusted in accordance with the fee structure
~· E evolved by the central government and/or appropriate central body, as the
case may be. The figure fixed by us is no indication and shall not be treated
as. such by any Government or authority fixing the fee structure on a regular
basis.

F •
Then remains the question of foreign students. The learned Solicitor
General brought to our notice that the Government of India had permitted
the private medical colleges in the country to admit foreign students upto
30% of their intake capacity every year and that the said limit was raised
to 50% in the year 1991. He submits that the bulk of the foreign students
are from Mitlaysia and that there was an understanding between the
G Government of India and the Government of Malaysia that a sizeable
number of students from Malaysia will be admitted to the private medical
colleges in India on payment of about 40 to 50,000 U.S. dollars. It is stated ·
that most of the students prefer and are admitted into colleges run by Dr.
T.M.A. Pai Foundation at Maiiipal and Mangalore. A few of them are also
. H admitted into the colleges at Bangaloe and Belgium. He submitted that
PAIFOUNDATIONv. STATE 127

while there is no agreement as such between the two Governments, it was A
an assurance held out by the Government of India to the Government of
Malaysia. He submits that for the current year (academic year 1993-94),
status quo may be maintained which means that foreign students to the
extent of 50% of the intake capacity of the medical colleges may be
permitted to be filled in by Foreign students. He submits that by the ~
academic year 1994-95 the Government would have evolved a definite and
clear policy in this behalf. He brings to our notice para (9) of the affidavit
filed by Ms. Shailaja Chandra, which reads as follows:

"The Central Government therefore submits that for the current
academic session 1993-94, purely as an ad-hoc dispensation, 50% C
of the seats may be permitted to be filled by foreign students,
particularly Malaysians. This would cover all recognised private
medical colleges and apply to the number of seats recognised by
Medical Council of India. The Central Government will undertake
a de novo examination of the entire subject to formulate a policy D
that will be made applicable from the next academic year 1994-95
onwards to be placed before the Honorable Court at a subsequent
stage."

Whatever may have been the circumstances and reasons for which
the Government of India had permitted the private medical colleges to E
admit the foreign students to the above extent, it is clear that the said
permission or arrangement is not enforceable and cannot be enforced with
effect from the academic year 1993-94 in view of the judgment in Unnik-
rishnan. Admittedly, there is crying need for these seats within the country
itself and it is they who must have the priority in the matter of admission p
to these colleges.

Sri Salve, learned counsel appearing for the petitioner in Writ Peti-
tion (C) No.317 of 1993 (filed by Dr. T.M.A. Pai Foundation and Others)
submits that a part of Kasturba Medical College, Mangalore and their
medical college at Manipal have become a part and parcel of the deemed G
University and that the petitioners have already withdrawn the petition to
·that extent. He says that only 125 seats in K.M.C. college, Mangalore are
the subject matter of the writ petition at present. (He submits that the total
intake capacity of this college was 300 which was later reduced to 250 and
only 125 seats out of them are the subject matter of the writ petition at H
128 SUPREME COURT REPORTS (1993) SUPP. 3 S_.C.R.

A present. The learned Advocate General of Karnataka, however, says that
he has no instruction or information in this behalf and that according to
his information, the number of sanctioned seats in the colleges is 300, which
means that 150 seats are not concerned in this writ petition. We do not
wish to express any opinion on this aspect). Sri Salve says that out of these
125 seats the petitioners may be permitted to fill up 81 seats by admitting
B foreign students from Malaysia inasmuch as the petitioner has already
collected the fees from the said 81 students and has made a commitment
to them to grand admission for this academic year. He submits that the
collection of fees and the commitment made to the said students was prior
to this Court's decision in Unnikrishnan on February 4, 1993. He conceded
C that no permission or authorisation was given to the college, either by the
Government of India or by the Government of Karnataka, either to collect
the fee in advance or to made a commitment to foreign students to admit
them far in advance of the academic year. The learned counsel brought to
our notice certain proceedings which, however, do not pertain to the
D academic year 1993-94. The learned counsel also relies upon the general
authorisation given to all private medical colleges in this country to admit
students to the extent of 50% of their intake capacity and submits that in
view of the bonafide action of petitioner in collecting the fees and making
a commitment to admit foreign students from Malaysia, they may be
permitted to admit atleast 81 students for the curr~nt academic year as a
E special case. Sri Salve submits that if the petitioner is asked to refund the
_ fee (which they are bound to do in case they are not able to grant admission
to those students) the impact may be very heavy in view of the fact that the
rate of exchange has gone up since the amount was collected from the said
students.
F
On this aspect, the learned Advocate General of Karnataka has
brought to our notice that· when the petitioner was permitted to withdraw
the writ petition partly, this Court made an order, with the consent of the
counsel for the petitioner, on September 22, 1993, that the seats concerned
in this writ petition at present will be filled in accordance with· the order
G dated August 18, 1993. He says that having obtained the said order with
consent, the petitioner cannot now ask for a review of that order.

We are of the opinion that the objection raised by the learned
Advocate General is a perfectly legitimate one and has to be given effect
H to. There was no reason why the petitioner should have collected the. fee.
PAl FOUNDATION v. STATE 129

from foreign students promising them admission for the academic year A
1993-94 (beginning sometime in July/August, 1993) even prior to February,
1993. Indeed, according to the particulars furnished by the petitioner, he
has collected the amounts from students promising them admission not
only for the academic year 1993-94 but also for 1994-95. We see no
justification for this act and if the petitioner suffers any prejudice on B
account of such action, he has to blame himself of the same. We are,
therefote, not inclined to pass any special order iii the case of the petitioner
in Writ Petition No.317 of 1993.

Then remains the question whether any quota is to be allotted for
foreign students for this year - 1993-94 being an year of transition and C
adjustment-in view of the Government of India's Orders referred to above
permitting admission of foreign students to the extent of as niuch as 50%.
Taking into account all the facts and circumstances and having regard to
time that has already elapsed and the constriction of time, we are of the
opinion that it would be proper to permit the private professional colleges D
to admit N.R.ls. and foreign students upto a maximum extent of 15% of
the intake capacity for this year. In other wordS, provision made for N.R.ls.
to the extent of 5% in the order dated May 14, 1993 in Review Petitions
482 of 1993 etc. shall be raised to 15% and shall be available both for
N.R.ls. as well as foreign students. The basis of selection and admission E
for these N.R.ls. and foreign students shall be the same indicated in our
order dated May 14, 1993 in Review Petition Nos. 482/93 etc. In case,
however, N.R.ls./foreign students are not available to fill up all the seats
within the said 15% meant for them, it shall be open for the management
to admit other students within the said quota. It will not be necessary that F
the students admitted against the said 15% quota should be the allottees
from the Government or that they should have appeared for the joint
entrance examination, if any, held by the concerned Government or
authority. It is made clear that this is a special provision made only for this
year, being an year of transition.
G
The learned Advocate Genl!ral of Karnataka submitted that while
determining the tentative fee which can be collected by these colleges, this
Court must keep in mind that they are being permitted to admit N.R.Is.
and foreign students to the above extent. We agree that the submission
made by the learned Advocate General is a relevant one but it is not of H
130 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A much significance at this stage inasmuch as the determination by us is only
tentative and provisional subject to adjustment as and when the Govern-
ment of India or the concerned apex professional council fixes the fee
structure on a regular basis.

In the above circumstances, we determine the provisional fee payable
B for the payment seats in the following manner:

The medical colleges shall be categorised into three classes for the
purpose of fixation of fee payable by the payment students. Category (1)
sh~ll comprise medical colleges who have their own hospital facility.
C Category (2) shall comprise medical colleges partly utilising the facilities
of' the Government hospitals and partly their own hospitals and category
(3) shall comprise those medical colleges who do not have their own
hospital facility but depend entirely on the government hospital for training
students.
D
For category (1), we determine the fee payable at Rs.1,40,000 per
annum, for category (2} ·at Rs.1,20,000 per annum and for category (3)
Rs.1,00,000 per annum.

For Dental Colleges, the fee shall be Rs.1,00,000 per annum for those
E having their own hospital facility and Rs.90,000 per annum for colleges
availing of the Government hospital facility.

In the case of nursing colleges and colleges imparting instructions in
B.A.M.S., B.H.M.S. and B.U.M.S., the fees respectively fixed by the ap-
F propriate State Government shall be followed and operated subject of
course to adjustment on regular fixation by the Government of India/ap-
propriate apex prof~ssional council.

So far as engineering colleges are concerned, no fee used be fixed
G by us tentatively for this year. The fee fixed by the respective State Govern-
ment shall be operative and shall be subject to the final fixation as stated
above.

It may appear at first glance that the fees tentatively fixed by us is
quite high, but is not really true. Firstly, this is only a tentative fixation
H subject to adjustment on regular determination of fee structure by the
PAIFOUNDATIONv. STATE 131

Central Government and/or central councils concerned. Secondly, the A
payment seats are only half and it is they who have to bear the entire
burden of the expenditure incurred by college; the fees paid by free
students admitted on the basis of merit, is only a nominal fee. Any excess
paid in this year can always be adjusted in later years.

It is further directed that the requirement of Bank guarantee or cash B
deposit provided by clause (5) and referred to in clause (7) of the scheme
evolved in Unnikrishnan shall stand deleted. This deletion is effective for
both minority professional colleges as well as to 'non-minority' colleges.

So far as the affidavit filed by the Karnataka Government in Writ C
Petition No.663 of 1993 is concerned, we are unable to appreciate the
reasons for filing it seeking directions to private managements. The judg-
ment and orders of this Court are already there containing the directions.
We fail to see the need for another direction to implement the directions
already given. To us, the affidavit appears to be an attempt to explain away D
the inaction of the Karnataka government. Instead of performing its con-
stitutional duty of implementing the judgment and directions of this Court
in Unnikrishnan and subsequent order-which are indeed inspired by the
Karnataka Act banning capitation fee among other enactments-the seeking
of fresh direction to the managements to admit students allotted by it is
difficult to appreciate. It goes without saying that managements of private E
professional colleges are found to admit students allotted by the Govern-
ment as per the decision or this court in Unnikrishnan and the subsequent
orders in that behalf including those issued herein. So far as Kerala is
concerned there are only two private engineering colleges in respect of
which we propose to make orders separately inasmuch as we could not F
hear the counsel for the petitioners on these two days. Writ Petiton (C)'
No. 536 of 1993 shall be posted for orders at 1.30 P.M. on 8.10.1993 in the

.. chambers of S. Ratnavel Pandian. J .

The directions given in Unnikrishnan and the subsequent orders and
those given herein shall be implemented and students admitted against all G
the free seats and payment seats in all the professional colleges on or
before October 31, 1993. The State Government shall take immediate and
effective steps for the above purpose. The Central Government shall ensure
the implementation of the same by issuing appropriate directions keeping
in view Article 144 of the Constitution, if found expedient or necessary. In H
132 SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A case, any professional colleges refuses to abide by the said orders and
directions, the State Government concerned shall bring it to the notice of
this Court immediately for appropriate or~ers. Liberty is given to the
learned counsel for the concerned State Government to mention the same
before the Presiding Judge, S.Ratinavel Pandian, J.

B Ordered accordingly.

A.G. Matter disposed of.

ORIGINAL JURISDICTION : W.P. (Civil) No.536 OF 1993.
c WITH

W.P.(C) NO. 598 OF 1993

Under Article 32 of the Constitution of India.

D C.S. Vaidyanathan and K. V. Mohan for the Petitioner.

S.F. Nariman, R.F. Nariman, EMS Anam, M.A. Firoz and R.
Sasiprabhu for the Respondents.

The order of the Court was delivered·
E
This order may be read in continuation of the Order dated 7th
October, 1993 in T.P.Pai Foundation and Ors. etc. etc. v. State of Kamataka
& Ors etc. etc., (Writ Petition (C) Nos. 317 of 1993 etc. etc.). It is confined
to the two minority engineering colleges in Kerala.

F We have heard Shri F.S. Nariman and Shri Vaidyanathan, learned
counsel for the petitioners and Shri Mohan Vellapally, learned counsel for
the State of Kerala.

It is brought to our notice that admissions to fifty per cent of the
G seats in these two institutions have been finalised by conducting an objec-
tive test through an independent agency situated outside Kerala. On the
basis of this Court's order dated 18th August, 1993, though the admissions
have not yet been made formally. In the circumstances we direct that these
colleges shall be governed by the order dated August 18, 1993 subject to
the condition that the eqtire fees collected by them; wh~er from free
H students or from payment students or for that matter N.R.I. or Foreign
PAI FOUNDATION v. STATE 133

students, if any, shall be fully made over to the Government of Kerala. The A
Government of Kerala should continue to pay the salaries of the teachers
and other expenses, if any, as may have been borne by them for: the
previous years, for the current academic year. In other words the arrange-
ment prevailing in the previous years in respect of the fees collected and
the expenses of the college shall continue for this year. So far as the
admission to the other 50 per cent scats is concerned, they shall be filled B
by the allottees of the Government, as per the order dated August 18, 1993.
Since the admissions to 50 per cent of the seats have already been finalised
in pursuance of the order of this Court dated 18th August, 1993, on the
objective basis, and in accordance with the merit, we do not wish to
interfere with the said selection at this stage. However, it is directed that C
the students belonging to the relevant minority (which established and is
achninistering the college) shall not be admitted exceeding 50% of this
years' intake and the remaining 50% shall be given to non-minority can-
didates. Admission to free seats as well as payment scats will be made on
the basis of merit only. As directed in the order dated 18th August, 1993 D
the payment scats (including NRl/Foreign students) and free scats shall be
distributed equally between minority and non-minority students. The
NRl/Foreign students if any admitted, shall count towards payment scats
to be filled by the Management by conducting an objective test of its own.

The deletion of bank guarantee in the order dated 7th October, 1993 E
shall also apply to these institutions as also the 15% quota for
N.R.I./Foreign students as prescribed in the aforesaid order dated 7th
October, 1993.

Ordered accordingly.
F
AG Matter disposed of.

•