State governments cannot enter into agreements with Medical colleges: High Court

A provision in the law related to the admission and fee in self-financing medical colleges, empowering the state government to enter into agreements with medical institutions has been declared ultra vires and unenforceable by the High Court. A directive to this effect was given by the Court, on Thursday. The said clause was given in the Section 17 of the Kerala Medical education Act.

The above verdict was passed, partially allowing a batch of writ petitions filed by various private medical college managements, who were challenging the provisions of the Kerala Medical Education (Regulation and Control of Admission to Private Medical Education Institutions) Act, 2017.

Section 8(1)(a) of the Act, read with section 11, empowers a 10-member committee presided over by a retired Supreme Court or High Court judge to fix the fee and to ask the management to submit information that enables it to fix the fee. The fee so fixed by the committee will have validity for the period notified by the government, the legislation states.

Though, the provisional fixing of the fee by the Fee Regulatory Committee in self-financing medical colleges and then declaring the final fee within 90 days under Section (8) (1) (b) has also been declared illegal by the Bench.

The court, however, refused to quash the provisional fee already fixed and was of the opinion that no further order was called for in this regard, as the sum fixed had become a certainty. The court ordered the fee regulatory committee to finalize the fee without any further delay, if not already done, within the prescribed course of time, reported the Hindu.

The bench also directed that the management submit the relevant documents to the committee by Nov 15, 2017. The committee, on the other hand, could ask for submission of any additional documents by December 15, 2017. The final date for fixing of the fee as fixed by the court being February 15, 2018.

Elaborating on the Committee's powers, the High Court stated in its judgment, "It means that the institution would propose the fee and the Committee would fix the same by deleting elements of profiteering and capitation fee but leaving a reasonable surplus."

Other provisions that were upheld by the court were section 8(4), specifically subsections 8(4)(b), 8(4)(d), and 8(4)e).

Subsection 8(4)(b): allows the committee to cancel admissions to any institution that was conducted in violation of the Act, its rules, or conditions.

Subsection 8(4)(d): authorizes the committee to order a college to stop admissions or reduce the number of seats to the college for the period it deems fit.

Subsection 8(4)(e): the committee is empowered to recommend to the university concerned to withdraw recognition of a college that violates provisions of the Act, its rules, or specified conditions.

The high court said these provisions cannot be held to be ultra vires reported TOI.

The court further went on to uphold section 9(2) of the Act that stipulates that admissions to seats allotted to self-financing colleges must necessarily be merit-based and decided through a common entrance test.

The Court also declared ultra vires the provision which required the fee regulatory committee to take into account the factors such as location, nature, of course, etc while determining the fee structure. Though the court has upheld the provisions for fixing fees, it has in no uncertain terms declared as ultra vires and unenforceable a provision (section 17) that allowed the government to enter into agreements with the management regarding fees or any other similar matters.

The Court further directed the State government to reconsider the committee members composition as provided under Section 3(2) of the Act.