G. C. BHARUKA, J. ( 1 ) PETITIONERS are the students of m. b. b. s. course. They are reading in various private medical colleges which have been impleaded as respondents herein. All these colleges are affiliated to either Bangalore or Mysore university. ( 2 ) THE grievance of the petitioners is that the authorities of the respective colleges have been demanding from them arbitrary tuition fee for repeating the courses in particular subject/s so as to make them eligible for reappearing at the examination of such subject/s as 'failed candidates'. According to the learned counsel for the petitioners, though the right of the affiliated college to demand the tuition fee has been by and large settled by a bench of this court in the case of K. Rajashekar v Principal, adichunchanagiri institute of medical sciences, b. g. nagar and others , still the authorities are demanding the fee by setting out new interpretations to paragraph 6 of the government notification No. Hsw 102 msf 87, dated 5-6-1989 issued under Section 5 (1) of the Karnataka educational institutions (prohibition of capitation fee) Act, 1984 (hereinafter referred to as 'the State Act' ). ( 3 ) THE contentions raised on behalf of the petitioners in general are (i) tuition fee can be charged from the students as repeaters only if under the regulations of the university they are required to repeat the course for a particular duration in order to make them eligible for appearing at the examination of the subject concerned in which they have failed and not otherwise; and (ii) such repeaters' fee can be charged for treating both the papers of a subject as only one subject and not two subjects. ( 4 ) IN some of the writ petitions filed on behalf of the non-resident Indian students ('n. r. i. ' for short), it has been submitted that since they have been made to pay a consolidated fee of Rs. 50,000/- dollers for the whole course no additional fee can be charged from them even if they are required to repeat the course for the reason of their failing in some subjects. 50,000/- dollers for the whole course no additional fee can be charged from them even if they are required to repeat the course for the reason of their failing in some subjects. ( 5 ) ON the other hand, it has been contended by the learned counsel appearing for the private colleges that even if the students are not required to repeat the course to make them eligible for appearing at the examinations in failed subjects, still they are required to pay the repeaters' fee since they will be availing the facilities of library maintained by the college as also some other ancillary privileges. ( 6 ) I have duly considered the rival contentions with reference to the relevant statutory Provisions and the judicial pronouncements. ( 7 ) THE role of private professional colleges has been duly recognized by the Supreme Court in the case of unnikrishnan, J. P. and others v State of Andhra Pradesh and others. In paragraph 161, page 2242 of the report it has been observed that,"the hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the governments are in no position to meet the demand particularly in the sector of medical and technical education which calls for substantial outlays. While education is one of the most important functions of the Indian state it has no monopoly therein. Private educational institutions including mi- nority educational institutions too have a role to play". ( 8 ) AGAIN in paragraph 168, page 2245 of the said judgment, it has been held by their lordships that even if conceded that a person or a body of persons had a right to establish educational institution/s in this country, such right is necessarily subject to such law, as made by the state in the interest of general public. According to their lordships, the activities of private educational institutions are supplemental to the main effort of the state. In paragraph 174, page 2251 of the said report, it has been held that,"we have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the state and what applies to the main activity supplies equally to the supplemental activity as well. In paragraph 174, page 2251 of the said report, it has been held that,"we have held hereinbefore that the educational activity of the private educational institutions is supplemental to the main effort by the state and what applies to the main activity supplies equally to the supplemental activity as well. If article 14 of the Constitution applies as it does, without a doubt to the state institutions and compels them to admit students on the basis of merit and merit alone (subject, of course, to any permissible reservations wherein too, merit inter se has to be followed) the applicability of article 14 cannot be excluded from the supplemental effort/activity. The state legislature had, therefore, no power to say that a private educational institution will be entitled to admit students of its choice, irrespective of merit or that it is entitled to charge as much as it can, which means a free hand for exploitation and more particularly, commercialisation of education, which is impermissible in law. No such immunity from the constitutional obligation can be claimed or conferred by the state legislature". ( 9 ) THE State Act was enacted, as is obvious from its preamble, for prohibiting inter alia the collection of capitation fee for admission to the educational institutions, and for effectively eradicating the growing practice of commercialisation of education in the state. Section 3 of the act prohibits collection of capitation fee. Section 2 (b) defines 'capitation fee' to mean any amount by whatever name called, paid or collected directly or indirectly in excess of the fee prescribed under Section 5, but does not include the deposit specified under the proviso to Section 3. Section 5 of the said act provides for regulation of fees, ete. and reads as under:"5. Regulation of fees, etc. (1) it shall be competent for the government, by notification, to regulate the tuition fee or any other fee or deposit or other amount that may be received or collected by any educational institution or class of such institutions in respect of any or all classes of students. (2) no educational institution shall collect any fees or amount or accept deposits in excess of the amounts notified under sub-section (1) or permitted under the proviso to Section 3. (3) every educational institution shall issue an official receipt for the fee or capitation fee or deposits or other amount collected by it. (2) no educational institution shall collect any fees or amount or accept deposits in excess of the amounts notified under sub-section (1) or permitted under the proviso to Section 3. (3) every educational institution shall issue an official receipt for the fee or capitation fee or deposits or other amount collected by it. (4) all moneys received by any educational institution by way of fee or capitation fee or deposits or other amount shall be deposited in the account of the institution, in any scheduled bank and shall be applied and expended for the improvement of the institution and the development of the educational facilities and for such other related purpose and to such extent and in such manner as may be specified by order by the government. (5) in order to carry out the purposes of sub-section (4), the government may require any education institution to submit their programmes or plans of improvement and development of the institution for the approval of the government". ( 10 ) IN exercise of the powers conferred by Section 5 of the State Act, the government of Karnataka issued a notification on 5th june, 1989. It provided that from the academic year 1989-90, the fees payable in private medical colleges shall be Rs. 2,000/- per annum in case of students admitted against "government seats" (paragraph l (a) and (b)), Rs. 25,000/- in the case of other Karnataka students (paragraph 1 (3)), Rs. 60,000/- in the case of non-karnataka students (paragraph l (d)), and Rs. 80,000/- per annum for foreign and non-resident Indian students (paragraph l (d) ). ( 11 ) IN paragraph 2 of the said notification the private medical colleges have been permitted to charge on per year basis the fees other than the tuition fees under the following heads:"1. Registration fee rs.-10-00 2. Admission fee rs.-50-00 3. Laboratory fee rs.-20-00 4. Sports fee rs.-50-00 5. Library and reading room fee rs.-1,000-00 6. Magazine fee rs.-10-00 7. Identity card fee rs.-10-00 8. Calendar fee rs.-10-00 pa 9. Medical examination fee rs.-10-00 pa 10. Refundable caution money deposit rs.-1,000-00 " ( 12 ) PARAGRAPH 3 of the said notification also entitles private medical colleges to collect any other fees prescribed by the university to which they are affiliated. Magazine fee rs.-10-00 7. Identity card fee rs.-10-00 8. Calendar fee rs.-10-00 pa 9. Medical examination fee rs.-10-00 pa 10. Refundable caution money deposit rs.-1,000-00 " ( 12 ) PARAGRAPH 3 of the said notification also entitles private medical colleges to collect any other fees prescribed by the university to which they are affiliated. ( 13 ) IN the case of Miss Mohini Jain v State of Karnataka and others, the petitioner who hailed from Uttar Pradesh had filed a writ petition under article 32 of the Constitution before the Supreme Court challenging the prescription of fee under the impugned notification on the ground that charging of Rs. 60,000/- per annum as tuition fee from non-karnataka students tantamounts to collection of capitation fee and not tuition fee since the merit candidates selected against government seats have been made liable to pay only Rs. 2,500/- per annum. The court accepting the said contention held that clauses l (c) and l (d) of the impugned notification in true substance provides for charging of capitation fee, and, accordingly struck it down as unconstitutional. This judgment was rendered on 30-7-1992. While doing so it was specifically clarified that, (I) all those students who have already been admitted to the private medical colleges in the state in terms of the impugned notification shall not be entitled to take advantage of the said judgment and shall continue their studies on the same terms and conditions on which they were admitted to the m. b. b. s. course. (II) nothing contained in the judgment shall be applicable to the case of foreign students and students who are non-resident indians. ( 14 ) CORRECTNESS of the propositions laid down in mohini jain's case, supra, were assailed before the Constitution bench in unnikrishnan's case, supra. In paragraph 145 of the latter judgment, it has been held by their lordships as follows:"in the above State of law, it would not be correct to contend that mohini jain's case, supra, was wrong insofar as it declared that "the right to education flows directly from right to life". But the question is what is the content of this right? How much and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call upon the state to provide him education of his choice? But the question is what is the content of this right? How much and what level of education is necessary to make the life meaningful? Does it mean that every citizen of this country can call upon the state to provide him education of his choice? In other words, whether the citizens of this country can demand that the state provide adequate number of medical colleges, engineering colleges and other educational institutions to satisfy all their educational needs? Mohini jain's case, supra, seems to say, yes. With respect, we cannot agree with such a broad proposition". ( 15 ) DEALING with the Provisions of the state act and upholding the same, and similar legislations of Tamil Nadu and maharashtra, it has further been held in unnikrishnan's case, supra, in paragraph 174 thus:"it is not brought to our notice that the enactments of other three states viz. , Karnataka, Tamil Nadu and maharashtra contain similar offending Provisions. Indeed, they do not. None of their Provisions says that the management of a private educational institution can admit students, against "payment seats", "irrespective of the ranking assigned to them in such test (entrance test) or examination". Much less do they say that to such admissions, the provision prohibiting capitation fee shall not apply. True, they do not say expressly that such admissions shall be made on the basis of merit, but that, according to us, is implicit. If the notifications or orders issued thereunder provide otherwise, either expressly or by implication, they would be equally bad for the reason given above". ( 16 ) THE Constitution bench of the Supreme Court has also impliedly overruled the view taken in mohini jain's case, supra, regarding the concept of capitation fee. In the last sub-para of paragraph 169 has it held that:"it is the discretion in the matter of admission that is at the root of the several ills complained of. It is the discretion that has mainly led to the commercialisation of education. 'capitation fee' means charging or collecting amount beyond what is permitted by law; all the acts have defined this expression in this sense. We must strive to bring about a situation where there is no room or occasion for the management or any one on its behalf to demand or collect any amount beyond what is permitted. 'capitation fee' means charging or collecting amount beyond what is permitted by law; all the acts have defined this expression in this sense. We must strive to bring about a situation where there is no room or occasion for the management or any one on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutions which is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four states enactments prohibiting capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions. They seek to regulate the fees that can be charged by them which may be called permitted fees and to bar them from collecting anything other than the permitted fees, which is what 'capitation fees' means. Our attempt in evolving the following scheme precisely is to give effect to the said legislative policy". (emphasis supplied) ( 17 ) AFTER so observing their lordships have formulated a scheme in paragraph 170. Clause (2) of the scheme clearly envisages the concept of free seats and payment seats. Though both the free seats and payment seats were to be filled directly on merit basis, 'payment students' are required to pay higher fees. ( 18 ) IN view of the statutory Provisions and the judicial pronouncements made by the apex court, now it cannot be disputed that the private medical colleges can charge tuition fees only under and in accordance with the law laid down in this regard. It also cannot be disputed that such colleges are entitled to charge tuition fees only for and in proportion to the instructional services rendered by them, for such fees being constitutional. The fee prescribed or sought to be collected should also broadly satisfy the test of quid pro quo. ( 19 ) IT was keeping in view this basic constitutional requirements that the division bench of this court in the case of k. Rajashekar, supra, had read down para 6 of the impugned notification providing for collection of tuition fee from the repeaters. The said para reads as under:"6. The private medical colleges are also permitted to collect tuition fee from repeaters in proportion to the subject/subjects repeated, viz. , Tuition fee per annum subjects repeated. The said para reads as under:"6. The private medical colleges are also permitted to collect tuition fee from repeaters in proportion to the subject/subjects repeated, viz. , Tuition fee per annum subjects repeated. Total number of subjects taught in that year". ( 20 ) IN the said case of k. Rajashekar, supra, this court accepting the plea of the students that the repeaters in practice attend the classes only for 2 or 3 months in a particular subject in respect of which they want to appear for the supplementary examination. Accordingly keeping in view the fainess in charging of tuition fees, the bench ultimately allowed the writ petitions with the following directions:" (A) the respondent-private medical colleges shall receive tuition fee from repeaters only in proportion to the sub- ject/s repeated for a period of three months and not for the whole year, that is one-fourth of the proportionate tuition fee fixed for the subject for the whole year; and (b) the amounts paid by the petitioners shall be adjusted by the respondent-colleges and the balance shall be paid by the petitioners within three months. It will not be necessary for the petitioners to pay any interest on the amount payable, if it is paid within three months; payments made after three months shall carry interest at 9% p. a. from this date; and the respective institutions may withhold the certificates/marks cards till the payment is made". ( 21 ) FROM the above directions of the division bench, it is clear that the (i) private medical colleges can charge the tuition fee from the students if and only if they are required to repeat the course for the given duration to make them eligible for appearing in failed subjects and not otherwise; (ii) such fee can be charged only subject-wise and not by bifurcating the subjects into 'papers' meaning thereby that irrespective of the number of papers in a subject only one repeater fee can be charged; and (iii) the repeater fee has to be calculated with reference to the tuition fee payable by the candidate keeping in view the category in which he falls, like in free or payment seat, or in the non-resident Indian quota. ( 22 ) THE plea of discrimination based on different scales of fee, payment and n. r. i, seats has to be rejected outright keeping in view the judgment of the Supreme Court in unnikrishnan's case, supra, declaring such fees structure as constitutionally valid. ( 23 ) THESE writ petitions are accordingly disposed of with a direction to the respondent colleges to collect the fees as directed by this court in the case of k. Rajashekar, supra, and as explained hereto in this judgment. The college authorities are to make up the accounts of deficiencies or the excess payments accordingly. ( 24 ) KEEPING in view the fact that the impugned notification dated 5-6-1989 provides for payment of tuition fees having a bearing on the rights of the students as also the institutions, it needs to be properly amended or substituted by another notification keeping in view the judicial pronouncements/ directions issued in this regard subsequent to issuance thereof to avoid any further confusion regarding matters contained therein. It is expected that the state government will do the needful without any further delay, inter alia, specifically denning the word 'repeater' and setting out the norms for charging the repeaters' fee by giving due regard to the respective regulations of the universities and the constitutional limitations as noticed in this judgment. ( 25 ) BEFORE parting, it is clarified that if any of the petitioners were ineligible to appear for the examinations as per the regulations but they have availed the same pursuant to any interim order passed by this court, then such appearance will be ignored. ( 26 ) ALL these writ petitions are accordingly disposed in terms of the observations and directions set out above. Parties to bear their own costs. ( 27 ) A copy of this judgment be handed over to the learned additional government Advocate for communication to the secretary, education department for doing the needful. --- *** --- .