New Delhi, August 14
The Supreme Court today said the private professional educational institutions, including those run by minorities, in the country have no right to charge capitation fee. But, it added, the government cannot fix a rigid fee structure for them as they must have a considerable freedom to generate funds for improving the infrastructural facilities.

Giving the correct interpretation of the 11-Judge Constitution Bench judgement on the right of unaided private and minority institutions, delivered last year, a five-Judge Bench, headed by Mr Chief Justice V. N. Khare said the court had provided for the setting up of a committee in each state for deciding the fee structure, leaving no scope for charging the capitation fee.

The need to set up the five-Judge Constitution Bench by the apex court to give correct interpretation of the 11-Judge Bench judgement, had arisen because different institutions and states had drawn different conclusions from it, leading to multiple litigation in various high courts.

The Bench comprising Mr Justice S. N. Variava, Mr Justice K. G. Balakrishnan, Mr Justice Arijit Pasayat and Mr Justice S. B. Sinha, further clarified that though the minority institutions have been protected under Article 30 of the Constitution to have full management freedom in running them, the government could interfere in their affairs in the national interests.

“Of course, we must not be understood to mean that even in the national interest a minority institute cannot be closed down,” the Bench said, clarifying that “the minority educational institutions have preferential right to admit students of their own community. But no such rights exist to non-minority educational institutions.”

Regarding the determination of the fee, the court further clarified that the 11-Judge Bench had provided for the setting up of a five-member committee under the chairmanship of a retired high court judge.

The committee will have a chartered accountant, a Medical Council of India or All-India Council for Technical Education member depending upon the nature of the institute, state government’s education or health secretary and a coopted member, who would be a person of repute.

The fee structure decided by the committee would not be revisable before the three-year period of its implementation, the court said.

The government would have the power to derecognise any institute found charging capitation fee and violating the norms laid down by the committee, the court said.

On the question of the management quota in unaided minority institutions, the court said it would be decided by another committee headed by a retired judge, keeping in view the local needs.

However, Mr Justice Sinha disagreed with the other four judges on the definition of local needs, saying that “a myopic view” could not be taken on this issue.

Since the admission process in the medical and engineering colleges for the 2003-04 session was at an advanced stage by now, the management quota and the state’s quota for the current session would be fixed at the 50:50 ratio. For future, it would be decided by the committee, the court said.

There would be a combined entrance test (CET) for all professional courses within a state as decided by the state government. But the private institutions could have their own CET as per the norms laid down by the committee, it said.