The future of thousands of students hangs in the balance as the Karnataka government's new law regulating admissions to private professional colleges is challenged in the Supreme Court.
in BangaloreDESPITE a belated piece of legislation to regulate admissions to professional colleges in Karnataka for the academic year 2004-05, the State government has not been able to clear the confusion among seat aspirants and their parents - legal wrangling between the government and the private managements; numerous and conflicting court orders; counselling and re-counselling; hefty fee structures, some of which are still awaiting court orders and so on. Serious questions also persist about the new legislation, enacted on July 31, with academics wondering whether it will serve any purpose and legal experts doubting its potential to pass judicial scrutiny.
The Karnataka Selection of Candidates for Admission to Medical, Dental and Engineering Courses (Special Provisions) Act, 2004 provides for a 75:25 seat-sharing formula between the government and private managements for admissions to privately managed, unaided, non-minority professional institutions in the State, and for the adoption of a fee structure based on the recommendations of the Justice A.B. Murgod Committee. The Act has only added to the chaos, with some managements challenging it in the Supreme Court on the grounds that it violates the court's interim orders of July 15 that the government could fill only 50 per cent of the seats in privately managed colleges and the rest could be filled on the basis of the entrance tests conducted by either the managements themselves, or the State government's Common Entrance Test (CET) Cell.
The hurriedly passed legislation has resulted in the seat selection process being conducted all over again. It has already been overturned and scrapped twice (first on July 15, after the Supreme Court verdict and on August 2, after students protested against the haphazard allocation of seats).
According to the CET Cell's latest schedule, while counselling for undergraduate courses in engineering will start on August 7, for medical and dental courses at the undergraduate level it will commence on August 23. According to the Cell, there are 1,837 medical seats (in 24 government and private medical colleges), 1,313 dental seats (in 34 colleges) and around 32,000 engineering seats (in 109 colleges). Around 1,20,000 candidates took the CET in May. The Cell has announced that from the academic year 2004-05 there will be no seat selection process for students from outside Karnataka since the new Act does not provide for it. For the over 13,000 non-Karnataka students who took the CET, the only hope now is to approach private managements with their CET ranking. Many students in this category claimed that the Karnataka government was guilty of breach of faith and that it had removed them from the purview of the Act only to help private managements. Private institutions do offer seats but for a fee ranging between Rs.4,00,000 and Rs.8,00,000 for an engineering seat and Rs.20,00,000 for a medical seat.
THE current deadlock is over seat-sharing and fee structure. While the Karnataka government wants to have a say in the allotment of 75 per cent of the seats in private professional colleges in keeping with its socio-political commitments, managements want this to be restricted to 50 per cent. The rest, they say, will be allotted by them "purely on merit with no reservations whatsoever". In the second, now abandoned, round of counselling, private managements even refused admission to candidates who fell outside the 50 per cent limit but were recommended by the CET Cell under the provisions of the new Act.
In the coming third round, a similar situation is bound to develop. For example, a private college with 100 seats is likely to increase the number to 125 illegally so that it can accommodate the 75 candidates to be sent by the CET Cell under the new formula. As a contingency plan in the event of the Supreme Court ruling against the government's 75:25 formula, the CET Cell is preparing two seat matrices: 75:25 and 50:50.
Although merit is now the sole criterion to admit students to private or government colleges and the question of who would fill seats should hardly matter, some managements, especially those managing medical and dental colleges, are not prepared to give the government 75 per cent seats. R.L. Jalappa, a senior Congress leader who runs a medical college and is the chairman of the Consortium of Medical, Engineering and Dental Colleges of Karnataka (Comed-K), consisting of 16 medical, 26 dental and 26 engineering institutions, said: "It is a question of our right. We have invested crores of rupees in our colleges and we are responsible for the quality of education. What business does the government have in insisting on 75 per cent of our seats? In fact, they should only get 25 per cent." Said Professor M.R. Doreswamy, chairman of PES Institutions and a Comed-K member: "The right to admit students to our institutions is our fundamental right. Having established a private institution why should we not have even this basic right?"
However, the managements themselves are divided over the issue. Engineering college managements want the government to take 75 per cent of their seats because, given the surfeit of engineering colleges, they themselves have found it difficult to fill all the seats. More than 5,000 engineering seats remained unfilled in the last two academic years. Managements would also like to have a discretionary quota from which they can hand out seats to promoters, family members of the faculties, well-wishers and others. Doreswamy has filed a petition in the Karnataka High Court seeking a 10 to 15 per cent discretionary quota.
The annual fee structure fixed by the Murgod Committee in undergraduate courses in privately managed institutions (it varies between Rs.1,40,000 and Rs.1,65,000 for the medical colleges and between Rs.90,000 and Rs.1,10,000 for the dental colleges, and Rs.32,590 for the engineering branches) is also not acceptable to any of the managements. Some have approached the Karnataka High Court seeking a revision. But even the notified fees are hefty for many a student and could result in many forfeiting their seats.
On the face of it, the N. Dharam Singh-led coalition government had no option but to enact a law. Even after two months of cajoling and threats, the more powerful among the private managements refused to accept the government's 75:25 seat-sharing principle. But also apparent is the government's dilly-dallying and failure to evolve a policy on the vexed issue. The S.M. Krishna government, when faced with a similar problem, managed to convince the managements to agree to the 75:25 formula and averted a crisis. But in 2003 the managements had made it clear that they would adhere to the formula only for the academic year 2003-04 and would insist on a 50:50 seat-sharing arrangement in 2004.
But the Dharam Singh government seems to be wary of taking on the managements. It is not surprising considering the fact that many in the political/ruling class have a stake in such institutions. Major Irrigation Minister Mallikarjun Kharge, former Ministers such as Dr. G. Parameshwar, H.C. Srikantaiah, D.K. Shivakumar, S.S. Mallikarjuna, Qamarul Islam, T. John, V. Muniyappa, C.K. Jaffer Sharief, S.B. Patel, Karnataka Pradesh Congress Committee (KPCC) treasurer Shammanur Shivashankarappa, and legislators of all political hues are directly connected with the running of private professional colleges in the State.
SINCE their inception in the 1980s, capitation fee-based colleges have been generally known for the practice of selling seats. However, in the wake of the Supreme Court judgment in Unnikrishnan J.P. vs Andhra Pradesh in 1993, the introduction of the CET for distribution of seats in private institutions under `free, payment and management seats' categories, this practice was curtailed to a large extent.
Although a vast majority of students and parents welcomed the CET process and the semblance of order that it provided, the managements were unhappy, since hardly 15 per cent of the seats were under their discretion. Cases against the process were filed almost every year seeking a larger say for the managements in both the administration of their colleges (read fees) and the selection process itself.
However, the CET Cell-governed admission procedures were affected by the judgment of a 11-member Constitution Bench of the Supreme Court in T.M.A. Pai Foundation vs State of Karnataka.
On October 31, 2002, even while ruling that merit should be the sole criterion for selection, the Bench ordered that managements must be allowed to conduct their own entrance tests, and that the fees, while being uniform for all students (no cross-subsidisation), could vary from institution to institution depending on factors such as facilities and location.
It also ruled that the managements could budget and charge students for a "reasonable surplus" which would be used for the future development of the colleges.
In August 2003, hearing Islamic Academy of Education vs State of Karnataka, a Supreme Court Bench ruled that given the shortage of time, seats in privately managed institutions for the academic year 2003-04 should be shared in the ratio of 50:50 between the government and private managements. These directions were seen by managements as "a liberation and a restoration" of their rights to fill seats in their colleges.
The court also ruled that committees headed by retired judges would prescribe the quantum of fees and admission norms to private institutions until the Union government enacted a law in this regard. (The Karnataka government constituted the Murgod and Venkataraman committees.)
THE major question before the government now is how to protect the rights of the poor but talented students and those who are entitled to reservation benefits. A.N. Jayaram, former Advocate-General of Karnataka, told Frontline that a cost analysis of subsidising the fees for candidates coming under the Scheduled Castes, Scheduled Tribes and Other Backward Class categories by the government found that the subsidies would cost it Rs.60 crores in the first year, Rs.120 crores in the second year, Rs.180 crores in the third year and so on. By the end of the fifth year the cash outflow would be around Rs.500 crores, which the government cannot afford.
The Karnataka government has filed caveats in both the Supreme Court and the Karnataka High Court in the managements' cases challenging the latest Act. It hopes that the new law would be included in the Ninth Schedule of the Constitution so as to make it immune from judicial challenge. But this requires a constitutional amendment to be approved by both the Houses of Parliament and therefore cannot be an immediate remedy. Jayaram says that it is settled law "that a post-1973 legislation will not acquire judicial immunity merely by inclusion in the Ninth Schedule and can be subjected to judicial review".
According to Jayaram, the government could seek a review of the Supreme Court judgment in the Pai case showing how the strict implementation of the order will result in many poor students being unable to take up professional education.
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