The Kerala government's grand plan for private sector participation in professional education suffers a setback with some minority managements securing a court order in their favour in the matter of fixing the fees and the government's quota of seats.
in ThiruvananthapuramONE of the important policy announcements made by Chief Minister A.K. Antony soon after the United Democratic Front (UDF) government came to power in Kerala was the decision to allow the private sector to establish self-financing medical, engineering and other professional colleges in the State, for the first time.
The demand for admission to professional colleges in Kerala had always far outstripped the available number of seats in the few government colleges. In fact, even when professional colleges charging capitation fee were mushrooming in the neighbouring States of Tamil Nadu and Karnataka with an eye on tapping the demand in Kerala, the State, where the Left movement had played a major role in shaping policies, had remained reluctant to allow private capital to dictate its educational policies. The principles of equity and justice remained paramount in shaping the education policies of successive governments.
But, of late, the State had realised that its fund-starved government was no longer capable of providing quality educational facilities on its own and needed support from the private sector. Yet, even when the government began sanctioning self-financing institutions, Kerala was unique as a State in insisting that the norms of justice and equity that had guided its educational policies until then would continue to guide its policies in the new era of large-scale private participation.
The Antony government, which announced the significant policy decision soon after assuming office, argued in justification that the State was no longer able to meet even the daily administrative expenses and could not any longer be expected to bring in timely reforms in the educational sector if it continued to block the entry of the private sector. Antony said that the policy shift was meant to help hundreds of students from Kerala, who sought professional education elsewhere every year, find educational opportunities in their own State. Significantly, he said, the government's strict guidelines would ensure that the principles that had led the education sector in Kerala until then were not diluted by the private managements. He also argued famously that "the sanctioning of two self-financing professional colleges would be equivalent to establishing a government college, as 50 per cent of the seats in these institutions would be allowed to be filled only from the government merit list.''
The eagerness of the government to push ahead with its decision was evident when it promptly gave its "essentiality certificates'' to 43 applicants to start self-financing medical colleges in the State. The certificates allowed the latter to present their case before the Indian Medical Council. But in the end, the Council gave permission to just four among the applicants - Pushpagiri Medical College, Thiruvalla; Malankara Syrian Orthodox Medical College, Kolenchery; Amrita Medical College, Kochi; and Somerwell Memorial CSI Medical College, Karakkonam.
The State government claimed that it had allowed the managements to establish the colleges and had issued "essentiality certificates'' based on an "understanding'' that the managements would be satisfied with 30 per cent of the seats (of which 15 per cent would be management quota and 15 per cent Non-Resident Indian, or NRI, quota) to be filled by them. It also claimed that the percentage of seats was subsequently raised to 50, the other half being set apart for the government, and that this arrangement was agreed to by all the managements.
It was at this juncture that the Supreme Court's ruling in the T.M.A. Pai Foundation Case, which redefined the rights of "minorities'' to establish and run educational institutions of their choice came. The verdict did not make an immediate impact in Kerala, which had only then sanctioned its first self-financing medical and engineering colleges. No sooner had the State government issued on December 19, 2002 an order fixing regulations for admission and payment of fees in the unaided medical colleges than two unaided minority medical college managements sought refuge in the apex court verdict. (In its order, the government had fixed a maximum of Rs.28,750 as tuition fee and special fee per student in an year and stated that 50 per cent of the students admitted in these colleges should be from the merit list prepared by the government.)
In a move that Chief Minister Antony described later as "nothing but a betrayal of trust'', the minority managements of the Pushpagiri Medical Society and the Malankara Orthodox Syrian Church Medical Mission approached the Kerala High Court, challenging the government order. The Division Bench ruled on January 20 that the government order was "arbitrary'' and "illegal'', and directed the government that the merit quota of seats could only be 25 per cent in the two colleges. This was a blow to the Antony government, which had assured the people that it would "ensure equity'' while sanctioning self-financing colleges freely.
The Chief Minister's statement that the sanctioning of two self-financing colleges was equivalent to establishing one government college became the butt of jokes after the court allowed a free hand to the colleges to fix fees and admit 75 per cent of the students. To add to the government's discomfiture, the court had also fixed the fee payable by students selected from the merit list at Rs.1.5 lakh, based on the government's own submission regarding the likely expense that it incurs for a medical student's education.
With allegations that certain forces within the government had colluded with the private managements in deliberately failing to make a strong case before the court gaining credibility, the Antony government first announced that it would go on appeal before the Supreme Court but later decided to file only a review petition before the High Court. The court's decision was a foregone conclusion. Dismissing the review petitions filed by the government and some others, the court said that the State government's claim for half the number of seats in the minority institutions was "wholly untenable'' as it had failed to disclose "the local need which might justify its demand'' (as had been suggested in the apex court verdict).
In a significant observation with far-reaching consequences for Kerala, the Division Bench said that if the State was to be given an equal number of seats in these colleges, the distinction between aided and unaided institutions would be "rendered nugatory''. "The State must realise that after it had given the no-objection certificates to the two college managements, the decision of the apex court in the T.M.A. Pai case has brought about a sea change in the legal position. The State cannot shut its eyes to the hard realities in the post-T.M.A. Pai era,'' it said. The Judges also observed that if freedom from the government was the goal of an unaided institution, the government cannot fix an arbitrary price on that freedom.
The managements of the two medical colleges which approached the court have firmly denied that they had been a party to the "understanding'' which the government claims it had made with them - that half the number of seats should be reserved for government merit list students. Their denials notwithstanding, the fact remains that the two other colleges, the Amrita College and the CSI College, which too had been a party in the discussions, have set apart 50 per cent of the seats to be filled from the government list. The government is now in the dock for its failure to get such an assurance in writing from the managements.
A DAY after the court rejected the review petitions filed by the government and some others, the Kerala Assembly unanimously criticised the court's decision. Antony later said: "Though they had the right to do it, it was improper on the part of the private medical colleges to have approached the court after agreeing to the government conditions initially, at the time they submitted their applications. I see this verdict as a setback for the entire people of Kerala and one that has been pronounced overlooking the ground realities in the State.''
The annual fee a government medical college student pays today is Rs.8,750; and the fee originally suggested by the government for students joining the self-financing colleges was Rs 28,750. But, as per the court directive, those who eventually get admission in these colleges in the government merit quota will have to pay Rs.1.5 lakhs. In the rest of the seats (75 per cent), the reported fee structure was much higher. In fact, it was brought to the notice of the court that the Pushpagiri management had collected Rs.22 lakhs per student in advance; the counsel for the management submitted that after deducting the fee (Rs.4.38 lakhs, according to the Pushpagiri Medical Society) the rest of the amount would be kept in a separate account and the interest would be paid to the student. The court had accepted the undertaking.
The Opposition Left Democratic Front has alleged that the government was pleading innocence and helplessness after actively colluding with the managements. The government's handling of the case was "marked by gross ineptitude bordering on complicity with the managements,'' its leaders alleged in the State Assembly. The court verdict was also a target of criticism "for its failure to acknowledge the social realities in Kerala''.
Nearly 25 per cent of the population in Kerala lives below the poverty line. The majority of the people have annual incomes below Rs.10,000. Only a small percentage of the people in the State can afford the luxury of paying even Rs.1.5 lakhs as fees every year. In spite of the democratically elected government's stated policy to the contrary, the court verdict has the virtual effect of confining higher education in the private sector to a minuscule minority of the truly rich - those who could, for example, afford to pay Rs.22 lakhs, under one pretext or the other. This in a State where the "minorities'' are not really "minorities'' but in fact form a major chunk of the population and control the majority of private educational institutions. This is the social reality in Kerala which, it is alleged, the government failed to inform the court.
According to Education Minister Nalakath Soopy, the State government is planning to move the Supreme Court against the High Court order. The Chief Minister has hinted at the possibility of the government enacting a law to overcome the court verdict and having it incorporated in the Ninth Schedule of the Constitution. "There is no question of the government bowing to pressure from the managements,'' Antony said.
Given the implications that the High Court's decision may have on the other institutions run by `minority' managements, it will not be long before Kerala witnesses an open confrontation between the State government and the minority college managements.
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