Dismissed

Dr. Sandesh C Patil v. Medical Council of India

Karnataka HC10 Jul 2023WP/22419/2017

Case brief

AI extract

What is this about?

Writ petition filed seeking refund of excess management quota fees for PG Orthopedics course. Court held that fee structure was fixed via Section 4A agreement; petitioner voluntarily opted for high-fee management quota; no evidence of capitation fee; petition rejected.

What did the court decide?

No refund of fees granted; petition rejected; no direction to fix fees under Section 6/7.

Dr. Sandesh C Patil Vs Medical Council of… — Pension and Retirement Benefits | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JULY, 2023

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO.22419 OF 2017 (EDN-MED-ADM)

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BETWEEN:

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DR. SANDESH C. PATIL, SON OF CHANABASAPPA PATIL, AGED ABOUT 24 YEARS, RESIDING AT ROOM NO.21, B.M.C. UG GENTS HOSTEL, PALACE ROAD, GANDHI NAGAR, BANGALORE - 560 009. ... PETITIONER

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(BY SRI SRIDHAR PRABHU, ADVOCATE)

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AND:

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MEDICAL COUNCIL OF INDIA, POCKET -14, SECTOR-8, DWARKA PHASE-1, NEW DELHI - 110 077, REPRESENTED BY ITS REGISTRAR.

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KARNATAKA AUTHORITY, SAMPIGE ROAD, 18^TH CROSS, MALLESHWARAM, BENGALURU - 560 012, REPRESENTED BY ITS EXECUTIVE DIRECTOR.

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STATE OF KARNATAKA, DEPARTMENT OF MEDICAL EDUCATION, ANANDA RAO CIRCLE, BENGALURU - 560 009, (REPRESENTED BY SECRETARY).

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UNION OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, DEPT. OF HEALTH AND FAMILY WELFARE, 'A' WING, NIRMAN BHAVAN, NEW DELHI - 110 001. (REPRESENTED BY ITS SECRETARY)

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RAMAIAH MEDICAL COLLEGE, M S R NAGAR, MSRIT POST, MATHIKERE, BENGALURU -560054, [email protected] REPRESENTED BY ITS PRINCIAL AND DEAN.

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(CAUSETITLE AMENDED AS PER ORDER DATED: 06.12.2022) ... RESPONDENTS

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(BY SRI LAXMI NARAYAN, AGA FOR R3, SRI N. KHETTY, ADVOCATE FOR R1, SRI N.K.RAMESH, ADVOCATE FOR R2, V/O/DT: 30.05.2017 NOTICE TO R4 IS DISPENSED WITH SRI GOWTHAMDEV C ULLAL CGC FOR R4 SRI M.R.NAIK, SR.COUNSEL FOR SRI SURAJ NAIK, ADVOCATE FOR R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE COLLEGE-WISE AND COURSE-WISE FEE STRUCTURE PUBLISHED BY THE R-2 ON 11.04.2017 VIDE ANNEX-E AND ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.07.2023, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, ANANT RAMANATH HEGDE J. , MADE THE FOLLOWING:

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ORDER

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The Writ Petition is filed seeking four distinctive reliefs made in the petition. On 12.04.2023, a memo was filed to the effect that the prayer No.(a) is not pressed. Accordingly, the said prayer is not considered. Thus, in substance the petitioner is seeking a refund of the excess fee allegedly collected by respondents No.3 and 5 while admitting the petitioner to the post graduate course in Orthopedics in respondent No.5 medical college.

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Facts in brief;

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The petitioner after completing his graduation in M.B.B.S. appeared for the National Eligibility cum Entrance Test, 2017 for Post Graduate Medical Course. The petitioner participated in the counseling conducted by The Karnataka Examination Authority (hereinafter referred to

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as 'KEA' for short). On 10.04.2017, the petitioner entered his options through online, on the official website, seeking admission in post graduate course in Orthopedics in respondent No.5 institution. The fee prescribed and displayed in the website for the said course was Rs.75 lakhs.

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The petitioner alleges that respondents No.2 and 3, in collusion with respondent No.5 have not offered the actual seats, in high demand subjects, available in respondent No.5 college, for counseling. It is contended that the procedure prescribed under Sections 6 and 7 of the Karnataka Professional Educational Institutions (Regulation of Admission and determination of fee) Act, 2006 (for short 'Act, 2006') for allotment of seats and fixation of fees, is not followed. It is also urged, assuming that the procedure is followed, as contemplated in the Act, 2006, still the process itself is illegal, as the same is

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contrary to regulation 9A of Medical Council of India Regulation, 2000.

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Based on the aforementioned contentions the petitioner has sought for a direction against respondents No.2 and 3 to prescribe fee structure by following Sections 6 and 7 of Act, 2006 and to refund excess fees collected from the petitioner, by treating the petitioner's admission as one under the centralized counseling system instead of admission under the management quota.

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Respondent No.5 has contested the petition by filing statement of objections.

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It is relevant to note that when the petition was filed in 2017, respondent No.5 was not made a party. Thereafter, application - I.A.No.1/2021 is filed to implead respondent No.5 as a party and respondent No.5 was impleaded vide order dated 06.12.2022.

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Heard Sri Sridhar Prabhu, learned counsel appearing for the petitioner. Sri N. K. Ramesh, learned counsel appearing for respondent No.2, Sri Laxmi Narayan, AGA for respondent No.3 and Sri. Madhusudan Nayak learned Senior Counsel appearing for respondent No.5.

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Sri Sridhar Prabhu, learned counsel appearing for the petitioner submitted that all the seats available for counseling were not offered and Annexure-A would disclose that the total seats for post-graduation in Orthopedics are not updated and it only reflects two seats under the Government quota and two seats under the private quota. It is his submission that more than 4 seats

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were available to be offered for counseling by the KEA. Since the same was not offered, the petitioner inevitably applied for the postgraduate course in Orthopedics under the private seat category. It is also his contention that the fee of Rs.75 lakhs per year fixed is arbitrary and without any basis and it contains an element of capitation fee

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which is prohibited under the Karnataka Educational Institutions (Prohibition of Capitation Fees) Act, 1984 (hereinafter referred to as the ‘Act, 1984’).

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He further submitted that fees of

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Rs.4,40,000/- and Rs.6,60,000/- for the same course under Government quota, would speak for itself that Rs.75 lakhs per year is unreasonable, unjust and arbitrary and includes the capitation fee which is prohibited under law.

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He would further submit that the petitioner has

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now completed three years course and he had no option but to pay yearly fees of Rs.75 lakhs. This being the position, prays to issue a direction to fix the appropriate fees following the guidelines and procedures contemplated under Sections 6 and 7 of the Act, 2006 and refund the excess fee collected from petitioner. Sri Sridhar Prabhu, learned counsel in support of his contention relied on the

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judgment of this Court in Balachandar Krishnan vs Sate of Karnataka reported in ILR 2021 page 1245.

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Learned counsel appearing for the KEA submitted that the petitioner on his own, opted for the course, paid the fees, as published on the KEA website under the private/management quota, and that being the fact, is not entitled to claim a refund of the alleged excess payment.

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Learned Senior Counsel Sri Madhusudan R. Nayak appearing for respondent No.5 submitted that Section 4A of the Act, 2006, permits the State Government and the Association of Private Professional Colleges to enter into an agreement relating to the fee structure and the contract entered into between the parties in terms of Section 4A of the Act is binding on respondent No.5 and the State. The fees proposed by respondent No.5 is approved by the Government after examining all the relevant factors and same is published by the KEA. The

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petitioner having applied under the management quota, being conscious of the fact that he does not stand any chance to apply under the quota chargeable with lesser fees, cannot claim refund of alleged excess fees.

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It is also his submission that Section 4A of the Act, 2006 has got overriding effect over the other provisions of the Act, 2006 and as held by this Court in the case of Vydehi Institute of Medical Sciences vs. State of Karnataka and others in W.P.No.20701/2022 and connected matters.

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Elaborating on this point he would contend that unless there is a challenge to the consensual agreement under Section 4A of the Act, 2006, the petitioner is not entitled to any relief.

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Further, it is submitted that the petitioner has impleaded the respondent No.5 in the year 2021 and he has claimed relief 4½ years after getting the admission

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and the petition is to be dismissed on the ground of delay and laches.

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He would further submit that if assumed that two other seats which are said to be not offered for counseling, the petitioner does not stand a chance to get admitted under the Government quota because of his low ranking.

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This Court has considered the submissions made

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at the Bar and perused the records.

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At the outset, it must be noted that the contention raised with reference to paragraph No.125 in

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Balachandar Krishnan supra, that Section 4A of the Act 2006 does not override Sections 6 and 7 of the Act 2006 is not tenable. This Court in W.P. No.20701/2022 and connected cases has held that Section 4A of the Act 2006 overrides Sections 6 and 7 of the Act of 2006. Since there is no challenge to the constitutional validity of Section 4A

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of the Act 2006, and as there is no payer to set aside he consensual agreement entered into under Section 4A of the Act, 2006, the case is to be examined in the light of Section 4A of the Act 2006 and the consensual agreement.

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Admittedly the KEA published the seat in respondent No.5 college for post-graduation in Orthopedics as the seat available with a yearly course fee of Rs.75 lakhs. This is apparent from the option entry entered by the petitioner on 27.04.2017. Admittedly, the petitioner did not get a seat in the first round. Then on 19.05.2017, the petitioner applied in the second round for the same seat, i.e., the post-graduation course in Orthopedics in respondent No.5 college agreeing to pay yearly course fee Rs.75 lakhs. This fact would establish that the petitioner has voluntarily opted to apply for the post-graduation in Orthopedics in respondent No.5 college under the management quota which attracted the yearly course fee of Rs.75 lakhs. There is nothing on record to suggest that

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the petitioner protested for the said fees prescribed, at the time of admission. Thus, his own conduct of opting for the course to secure admission under the management quota disentitles him to contend otherwise, insofar as fee structure is concerned.

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It is also relevant to note that the petitioner has not made out a case that had the other two seats (which according to the petitioner is not offered) been offered for counseling, he would have had the chance of applying for the said seats under the merit quota. Unless this fact is established, the petitioner cannot raise a grievance that he lost a chance for applying under the merit quota in respect of two seats which according to the petitioner are not offered for counselling.

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In terms of Annexure R-2, the State Government and the Karnataka Professional College’s Foundation entered into an agreement relating to seat

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sharing and fee structure. Clause 6 of the agreement relating to fee structure reads as under:

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"a. Whereas the report of Fee Fixation Committee constituted under Act is yet to be received, the fee structure applicable for the academic year 2017-18, the Government of Karnataka exempts the members of KPCF from the provisions of section 7(2) of Act No.8/2006 and in lieu thereof, it has been agreed by the parties and decided that there should be an increase of 10% annually on the tuition fee paid for the AY 2016-17. Accordingly, the following fee structure shall be agreed and adhered to:"

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From the said clause, it is apparent that the committee's report on fee structure was still awaited and that being the position, the exemption was given to the member of the Karnataka Professional College's Foundation from application of Section 7(2) of the Act No.8/2006 and it is further clarified in the said clause that fee chargeable for the academic year 2017-18 shall be 10% over the fee fixed for the year 2016-17. It is not pointed out in the Writ Petition that the fee charged by the

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respondents is more than 10% of the fee fixed for the academic year 2016-17. This being the position, this Court does not find any acceptable reason to direct the respondents to constitute a committee for fixation of fees for the year 2017-2018. The petitioner opted for the seat under the management quota and agreed to pay yearly course fee of Rs.75 lakhs, thus, he now cannot raise a grievance that the fee fixed is arbitrary.

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It is also to be noticed that there is nothing on record to show that Rs.75 lakhs per year fixed by respondent No.5 also comprises the capitation fee in addition to the prescribed tuition fees and other fees. In the absence of such material, this Court is not in a position to conclude that Rs.75 lakhs per year charged for the postgraduate course in Orthopedics in respondent No.5 - college was in contravention of the provisions of Act of 1984. It is noticed from the records produced by the petitioner that the different colleges are charging different

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course fees for different subjects and there is no uniformity in fee structure under the management quota. In this case this Court is not called upon to decide whether such variations in fee structure is permissible or not. However it can be concluded that there are no materials to hold that the fees charged by respondent No.5 includes capitation fee which is otherwise prohibited.

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Though it is urged that the procedure followed for admission and fixation of fees is contrary to Medical Council Regulations 2000, it is not pointed out how the procedure prescribed under the Act 2006 is contrary to Regulations, 2000 referred to above.

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It is also relevant to note that the petition is filed in 2017 and respondent No.5 against which now the relief of refund of fees is claimed, is impleaded in 2021. In other words, the petition against respondent No.5 is filed four and a half years after the admission. The petitioner has nor explained the delay of four and a half years in

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impleading respondent No.5. However, as noticed above the course fee is fixed in terms of an agreement provided under Section 4A of the Act, 2006. Neither is there a challenge to Section 4 A of the Act, 2006 nor to the agreement. We therefore do not find any merit in this petition. Hence, the following:

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ORDER

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The writ petition is rejected .

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Sd/JUDGE

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Sd/JUDGE

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BRN

Dr. Sandesh C Patil v. Medical Council of India

Case brief

What is this about?

What did the court decide?

Dr. Sandesh C Patil v. Medical Council of India

Case brief

What is this about?

What did the court decide?

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