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ROYAL SOCIETY OF EDUCATIONAL ACADEMY AND ANOTHER versus STATE OF U.P.AND ANOTHER

High Court of Judicature at Allahabad

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Royal Society Of Educational Academy And Another v. State Of U.P.And Another - WRIT - C No. 37525 of 2003 [2005] RD-AH 1430 (27 May 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc.Writ Petition No.37525 of 2003

Royal Society of Educational Academy,

Kanpur Nagar and another                ....Petitioners

Versus

State of U.P. and another                  ....Respondents

Hon'ble Sabhajeet Yadav ,J.

By this petition the petitioners have challenged the Government Orders dated 15.7.2003 (Annexure-2) and 2.8.2003 (Annexure-3), whereby the Government had fixed the fees of the students in private unaided professional colleges for the session 2003-2004. Petitioner no.1 is a registered Society, which established a private Dental College, petitioner no.2, namely, Rama Dental College Hospital and Research Centre, Lakhanpur, Kanpur Nagar. The petitioner no.2 is an institution established after necessary permissions from different authorities including Dental Council of India. The same is duly recognised and is affiliated to Dr. B.R. Ambedkar University, Agra. The institution does not receive any aid from the Government; it is a private unaided institution.

2. It is stated that under the scheme framed by the Hon'ble Supreme Court in J.P. Unni Krishnan's case ( reported in AIR 1993 SC 2178) 50% seats were free seats, 35% seats were payment seats and 15% seats were NRI/Management Quota seats and the petitioner-institution like all other private professional colleges fixed different fee structure for different categories of seats. The fee structure fixed by the institution was submitted to the State Government demonstrating that the petitioners had fixed their fee structure strictly in accordance with the scheme laid down in Unni Krishnan's case and that the petitioners were not charging any capitation fee. In the year 1997 the State of Uttar Pradesh without considering any material facts, purported to fix fees for free and payment seats for different professional courses run by different private professional colleges. Petitioner no.2 challenged this fixation of fee by the State Government vide order dated 27.9.1997 by filing Writ Petition No.35610 of 1997 and this Court vide its order dated 22.5.1998 stayed the operation of the order dated 27.9.1997 fixing the fees by the State Government. The aforesaid writ petition is pending and the stay order dated 22.5.1998 is continuing. Since the fixing of fees by the State Government vide order dated 27.9.1997 had been stayed by this Court, petitioner institution as well as other similarly situated private professional institutions continued to submit their fee structure every year, the candidates were selected by respondent no.2 for admission on free and payment seats on the basis of common entrance test were allotted to the petitioners, who were admitted year to year and paid the fees according to the fee structure of petitioner institution.

3. The present cause of action arose on account of the aforesaid Government orders issued by the State Government appears to be on directions issued by the Hon'ble Apex Court in the decision of the constitution Bench of eleven Judges rendered in T.M.A.Pai case dated 31.10.2002. The State Government purporting to act in compliance of the law laid down by the Hon'ble Supreme Court, issued Government Order dated 15.7.2003 and in this Government Order it provided that the earlier scheme of free and payment seats in self financed Medical and Dental Colleges is abrogated from the session 2003-2004 and provided that 75% of the seats in the institution shall be filled up on the basis of CPMT Examination conducted by the State Government on the basis of merit in conformity with the reservation policy of State Government while 25% seats shall be filled up by the Management of the institution according to merits in a transparent selection procedure. It further provided that for Dental Colleges maximum fees of Rs.1,10,000/- has been fixed for each student per year from session 2003-2004. It further provided that these professional colleges shall not charge any fees in excess of the fees fixed by the Government and in case any institution wants to charge higher fees, it shall submit its proposal alongwith justification for the same alongwith relevant records before the permanent committee set up by the State Government which shall inquire as to whether fees proposed by the institution is within the parameters laid down by the Hon'ble Supreme Court and the same is not for earning profits and the recommendation of the said permanent committee shall be considered and a decision thereon shall be taken by the State Government. It also provided that in case any Dental College charges fees higher than that fixed in the Government order it shall be deemed that the same is being charged for earning profits and necessary action shall be taken against it. It also provided that the fees fixed by the State Government in the aforesaid G.O. dated 15.7.03 shall be charged from the session 2003-2004. Although in the aforesaid Government order the particulars of so called permanent committee before whom the institutions were required to submit their proposals for higher fee, was not disclosed, but vide subsequent Government order dated 2.8.2003 the State Government had constituted a permanent committee headed by the Vice Chancellor of Chhatrapati Sahuji Maharaj Medical University, Lucknow as its Chairman alongwith four members. The said Government Order dated 2.8.2003 was served upon the petitioner institution on 16.8.2003.

4. The judgment of the Hon'ble Apex Court dated 31.10.2002 rendered in T.M.A. Pai's case was subsequently clarified by a constitution Bench of five Judges in Islamic Academy of Education and Anr. Vs. State of Karnataka and Ors., reported in J.T. 2003(7) SC 1 decided on 14.8.2003. A copy of the decision of the Hon'ble Apex Court rendered in Islamic Academy of Education case has been filed as Annexure-4 of the writ petition. In this subsequent decision the Hon'ble Apex Court has held that a private unaided professional institution must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. The respective State Government/ concerned authority was directed to set up a committee headed by retired High Court Judge, who shall be nominated by the Chief Justice of that State. The other members of the committee have to be nominated by the aforesaid Judge. The committee would be able to decide the proposed fee structure of educational institutions and it would be at liberty to approve fee structure submitted by the institutions or to propose some other fees, which can be charged by the institution concerned. The fee fixed by the Committee shall be binding for the period of three years at the end of which the institution would be at liberty to apply for its revision. Thus so called permanent committee constituted by the State Government vide Government Order dated 2.8.2003 is not competent to decide the validity of the proposed fee structure submitted by the institute and the same can only be decided by a committee as contemplated in the judgment and order dated 14.8.2003 of Hon'ble Apex Court and it has not been constituted till date. It is stated that as done in the previous years petitioner institution had already submitted its fee structure for the session 2003-2004 to the State Government as well as to respondent no.2. This fee structure was also mentioned in the prospectus of the petitioner institution. The Photostat copy of the fee structure for free seats and payment seats as submitted to the respondents and appended to the prospectus of petitioner institution is filed as Annexure-5 of the writ petition.

5. It is further stated that the Government order dated 2.8.2003 was received by the petitioner institution on 16.8.2003 and on the same day i.e. 16.8.2003 the petitioner received a copy of the counseling programme fixed by respondent no.2 whereby the counseling had started from 17.8.2003. Although the counseling had started from 17.8.2003, but the respondent no.2 at the time of counseling had not published the fee structure submitted by the petitioners or by other private professional institutions on the ground that for the academic session 2003-2004 a maximum of Rs. 1,55,000/- is prescribed as annual fee for each student in private medical colleges and a maximum of Rs.1,10,000/- is prescribed as such fees in private dental colleges. In the said fees, all types of fees are included, excluding hostel fee, examination fee and security money. Under the law laid down by the Hon'ble Apex Court, the State Government has absolutely no authority to fix fees of the private institutions and petitioner institution is free to fix its own fee structure and only restriction is that it cannot charge capitation fee. The fee structure submitted by the petitioner in the earlier years as well as for the session 2003-2004 is according to the guidelines laid down by Hon'ble Apex Court and petitioner institution is not charging any capitation fee and so long as the committee as contemplated in the judgment and order dated 14.8.2003 of Hon'ble Apex Court does not fix any fees lower than the fee structure of petitioner institution, the same is entitled to charge fees according to its own fee structure already submitted before the State Government and to respondent no.2.

6. On behalf of respondents no.1 and 2 a short counter affidavit has been filed by the Deputy Secretary, Government of Uttar Pradesh, Department of Medical Education along with stay vacation application for vacating the interim order dated 28.8.2003 passed in the writ petition staying the effect and operation of the Government Orders dated 15.7.2003 and 2.8.2003. In paragraphs 5, 6 and 11of the counter affidavit it is stated that keeping in view the observations and directions issued by the Hon'ble Supreme Court in T.M.A.Pai Foundation case, the impugned Government Orders dated 15.7.2003 and 2.8.2003 were issued, prior to the judgment of the Hon'ble Apex Court rendered in Islamic Academy of Education case, which was decided on 14.8.2003. It is note worthy to mention here that in T.M.A.Pai Foundation case the Hon'ble Apex Court has done away the existing system of free seat and payment seat and after the judgment of Hon'ble Apex Court  now all the seats have to be viewed uniformally and there is  no free seat nor there is any payment seat. In the current academic session 2003-2004 there are only Government seats and management seats. Prior to the judgment in T.M.A.Pai Foundation case the private Medical Colleges used to charge exorbitant fees running into several lacs of rupees, which state of affairs was deprecated by the Hon'ble Supreme Court and it was said that since imparting education is essentially charitable in nature, therefore there cannot be any profiteering and capitation fee cannot be charged. The Governments Orders were in fact , issued infurtherance and in consonance with the directions given by the Hon'ble Apex Court in T.M.A.Pai Foundation case. In paragraph 13 of the counter affidavit it has been stated that till the academic session 2002-2003 there was existing the concept of free seat and paid seat. Free seats were allotted to such candidates, who were higher up in the merit and payment seats were allotted to the candidates who ranks lower in the merit list. The allotment of seats( free and paid) was made by the Chairman, Counsel Board according to the merit of the candidate drawn in a competitive examination. For free seats, the yearly tuition fee was Rs. 8,000/- per student for Dental Course and Rs.13,000/- per student for M.B.B.S. Course. For paid seat, the yearly tuition fee was Rs.75,000/- for Dental Course and Rs.1,10,000/- for M.B.B.S.Course. In such fee structure, Medical and Dental Colleges used to charge the students heavily in the name of security, library, caution money, conveyance etc. and such additional charging was in tune of more than Rs.2,00,000/- per annum. In addition to the above, the Medical and Dental Colleges used to charge huge amount of money by various names, from the students who sought admission on the Management Seats. The said amount ran into several lacs of rupees. After the judgment of the Hon'ble Apex Court in T.M.A.Pai Foundation case the matter was considered by the Government of India and a policy decision was taken for fixing of fee structure so that the students are not over burdened and the aforesaid policy decision in the shape of guide-lines was circulated by the Government of India. In paragraph 14 of the counter affidavit it is stated that in view of the factual position in respect of fee structure and doing away of various categories of seats existing till the session 2002-2003, now for the current academic session for the year 2003-2004, no allotment has been made as being on a free or a paid seat. The allotment has been made only on Government Seats in every Medical and Dental Colleges. In paragraphs 7, 8 and 9 of the counter affidavit in pith and substance it has been stated that the impugned Government Orders have been issued pursuant to the policy decision taken by the State Government after considering the scheme laid down by the Hon'ble Supreme Court as also the guidelines issued by the Government of India. Thus both the Government orders, namely, 15.7.2003 and 2.8.2003 are in consonance with the judgment of the constitution Bench of the Hon'ble Supreme Court rendered in T.M.A.Pai Foundation case decided on 31.10.2002. Vide Government Order dated 2.8.2003 a permanent committee has been constituted for advising fee structure of Medical and Dental Colleges upon representations being made by Medical and Dental Colleges for any enhancement in the fee structure in excess of Rs.1,55,000/- and Rs.1,10,000/- respectively. Thus, the aforesaid Government orders cannot be said to be in conflict of the decision rendered by the Hon'ble Apex Court in T.M.A. Pai Foundation case and Islamic Academy of Education case.

7. Apart from the aforesaid counter affidavit, another counter affidavit has also been filed alongwith stay vacation application moved on behalf of Parent Association of the students. The application for Impleadment of Parent Association has been allowed and the office has been directed to incorporate it as respondent no.3 in the writ petition vide order passed on the application moved for Impleadment of respondent no.3. In a short counter affidavit filed on behalf of Parent Association of students through its President Sri Yogendra Nath Upadhyaya, which was sworn by Sri A.K.Mundra, who hasalleged to be the member of Parent Association of Students, in paragraph 5 of the counter affidavit, it has been stated that the Parent Association of Students is a registered Society having its registration valid upto 18.11.2008. The true copy of the registration certificate has also been annexed alongwith impleadment application. In paragraph 9 of the aforesaid short counter affidavit it has been stated that the Government institution is approximately charging hostel charges including fooding and lodging in the tune of Rs. 18,000/- per year. Besides this, a sum of Rs. 5,000/- as security, Rs.1500/- as examination fee, Rs. 14950/- as tuition fee in Medical Colleges and Rs. 9,200/- as tuition fee in Dental Colleges are being charged. In paragraph 11 of the counter affidavit it has been stated that the fees charged per student by the petitioner institution have been given as under:-

(a) Dental Colleges: Tuition fee Rs.2,07,000/-, hostel fee Rs.50,000/-, College Security Rs,1,00,000/- and hostel security Rs.10,000/- total Rs.3,67,00/- in the first year and in second , third and fourth year the charge of fee are as under:-

Tuition fee            Rs.2,07,000/-

Hostel  fee             Rs.   50,000/-    

                     Rs.2,57,000/-

The charge of fee in Medical Colleges by petitioners' institution are as under:

(i) Tuition fee                 Rs.2,98,000/-

(ii) Hostel fee                  Rs.   50,000/-

(iii)Examination fee         Rs.   25,000/-

(iv) Security                     Rs. 1,50,000/-

    Rs.5,23,000/-

8. In nutshell the grievance of respondent no.3 is that petitioner institution is charging exorbitant fees from the students, which runs contrary to the decision of the Hon'ble Apex Court rendered in T.M.A.Pai Foundation case and in Islamic Academy of Education case. In paragraph 14 of the counter affidavit it is stated that in view of the decision in Islamic Academy of Education case, the Government of Uttar Pradesh has appointed Justice P.K.Sarin, retired Judge of High Court, Allahabad as Head/Chairman of the Committee vide Government Order dated 20.2.2004 and the other members of the committee have also been appointed to give effect to the aforesaid decision of Hon'ble Apex Court. Although the Government Order dated 20.2.2004 was not filed alongwith the short counter affidavit filed by respondent no.3, but the typed copy of the same has been brought on record at the time of arguments, which was not disputed either by the learned counsel for the petitioners or by the learned Standing Counsel as well appearing on behalf of the respondents (State Government)

9. Heard Sri P.N.Saxena, learned Senior Counsel assisted by Sri Amit Saxena for the petitioners, learned Standing Counsel for respondents no.1 and 2 and Sri Satya Narain Shukla, learned counsel appearing on behalf of newly impleaded respondent no.3.

10. Since the affidavits have been exchanged between the parties, therefore, with the consent of the parties the writ petition has been heard for its final disposal at the admission stage itself.

11. The main submission of the learned counsel for the petitioner is that in view of the decision in Islamic Academy of Education case (Supra) the institution must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefits of the students. They must  also be able to generate surplus which must be used for betterment and growth of that educational institution. The fee structure for each institution must be fixed keeping in mind the infrastructure and facilities available, the investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged because of the reason that the majority judgment has held that imparting of medical education is essentially charitable in nature. In order to give effect to the judgment in T.M.A.Pai's case, the respective State Governments/ concerned authority were directed to set up in each State a committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be person of prescribed designation. Each educational institute must place before this Committee, well in advance of the academic year, its proposed fee structure, alongwith all relevant documents and books of accounts for their scrutiny. The Committee shall then decide whether the fee proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee, which can be charged by the institute. The fee fixed by the Committee shall be binding for a period of three years at the end of which period the institute would be at liberty to apply for revision. Once the fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged under any other head or guise e.g. donations the same would amount to charging of capitation fee. Learned counsel for the petitioners has submitted that the aforesaid Government Order runs contrary to the law laid down by the Hon'ble Apex Courtand the directions issued in the decision of Islamic Academy of Education case as maximum fee structure has been prescribed by the Government itself without constituting any committee, as directed by the Hon'ble Apex Court in Islamic Academy case.

12. Contrary to it, learned Standing Counsel and the counsel appearing on behalf of respondent no.3 have submitted that so far as the question for constitution of the Committee headed by the retired Judge of the High Court of the respective State nominated by the Chief Justice of the aforesaid High Court is concerned, the directions were given by the Hon'ble Apex Court in Islamic Academy of Education case, on 14.8.2003 prior to which the Government Orders dated 15.7.2003 and 2.8.2003  had already been issued by the State Government to give effect to the direction of the Hon'ble Apex Court  made in the decision of constitution Bench of eleven Judges in T.M.A.Pai Foundation & others Vs. State of Karnataka & others JT 2002(9) S.C. 1= AIR 2003 S.C. 355, which was rendered by the Hon'ble Apex Court on 31.20.2002. In the aforesaid decision of the Hon'ble Apex Court the scheme of free seats and payment seats prescribed for the Private professional institutions in the decision of Unni Krishnan J.P.'s case regarding admission of the students has been done away. Consequently, the Health Ministry of the Government of India had issued certain guidelines vide letter dated 14.5.2003 in pursuance of the judgment of the Hon'ble Apex Court, wherein it was observed that imparting of education is essentially charitable in nature and it should have no element of profit earning. Hence, it is the responsibility of the State Government to ensure that no medical education imparting institution realizes fee from the students with the intention of profit making and that the compliance of orders of Hon'ble Supreme Court is ensured. The issue relating to determination of seats in private medical/dental colleges, admission and fee to be charged were discussed with college representatives in pursuance of the judgment of the Hon'ble Apex Court dated 31.10.2002 and the guidelines issued by the Government of India. The above issues were also discussed by the committee constituted in pursuance of the order of the Hon'ble Supreme Court and by the Secretary, Medical Education after due consideration of recommendations of the committee and the proposal received from the management of private Medical/Dental Colleges, the aforesaid Government Orders were issued by superseding the earlier Government Order regarding fee structure, management of admission, procedure etc. of private Medical/Dental Colleges. By this Government Order the system of free and payment seats in admission to self financed private Medical/ Dental colleges has been abolished from academic session 2003-2004. Now the admission to 75% seats of Private Medical/Dental Colleges will be made  on the basis of C.P.M.T. Examination, by complying with the reservation policy of State Government. The remaining 25% seats will be of management quota and shall be filled in by the college Management on merit basis by adopting a transparent admission process, in the academic session 2003-2004 for which a maximum of Rs.1,55,000/- is prescribed as annual fee for each student in Private Medical Colleges and a maximum of Rs. 1,10,000/- is prescribed as such fees in Private Dental Colleges. In the said fees , all types of fees are included except hostel fee, examination fee and security money. Private Medical/Dental Colleges are advised not to charge from the students fees higher than the fees as prescribed in the aforesaid Government Order, but they can charge lesser fees if they so wish. If any college wants to charge fees higher than the fees prescribed in the Government Order, as referred above, it shall have to submit its proposal alongwith all necessary records presenting therein all justifications for charging higher than the fees prescribed for. The standing committee constituted by the Government shall examine the proposal and shall ensure that the proposed fees falls within the limit prescribed by the Hon'ble Supreme Court's verdict and that the proposed fees is not intended to earn profit. The Government shall take into consideration the recommendation of the Standing Committee and shall decide it accordingly. It has also been provided in the aforesaid Government Order that if any Private Medical/Dental Colleges without prior permission of the State Government charges from the students fees higher than the prescribed/recommended fees  by the State Government, it will be presumed that it is flouting the directions of the Hon'ble Supreme Court, hence necessary action shall be taken against them as per rules. The aforesaid Government Order would be applicable for academic session 2003-2004. In case of those students who have taken admission in the Private Medical/Dental Colleges in the academic session 2002-2003 or earlier, the old system of free and payment seats shall continue to apply them in future also. The aforesaid Government Orders have been issued only in respect of the academic session 2003-2004 as a temporary measure. In any view of the matter since the Committee headed by the retired Judge of this High Court has been constituted vide subsequent Government Order dated 20.2.2004. Therefore the relief sought by the petitioners to quash G.O. dated 2.8.2003, whereby the earlier standing Committee was constituted, has been rendered infructuous and the petitioners can submit their proposal before such Committee, which may be able to appreciate their grievance in proper and correct perspective on the basis of the material produced by the petitioners. In view of such facts and situation of the case, since the questions involved in the case also require investigation of facts and appreciation of evidence by the expert body constituted for the purpose, therefore on this count also the writ petition filed by the petitioners is liable to be dismissed by this Court under Article 226 of the Constitution of India.

13. On the basis rival submissions made by the learned counsel for the parties, crucial question arises for consideration whether  the impugned Government Orders dated 15.7.2003 and 2.8.2003 fixing the fee structure of Private Unaided Professional Institutions of M.B.B.S. and Dental Courses with liberty to them to enhance their fee structure higher than fixed by the Government by placing its justification before the Standing Committee constituted under the aforesaid Government Order, is any way contrary to the decision of T.M.A.Pai Foundation case as subsequently clarified by the Hon'ble Apex Court in Islamic Academic of Education case or not ? Putting the question in differently as to whether the impugned Government Orders run contrary to the aforesaid decision of the Hon'ble Apex Court and impairing any right of the institution in question with regard to their freedom in fixing their fee structure, if so what relief the petitioners are entitled?

14. In order to find out the correct answer of the aforesaid question in controversy involved in the case, it is necessary to examine the impugned Government Orders in the light of observations made by the Hon'ble Apex Court in the aforesaid decision.  In this connection it is necessary to point out that in the Islamic Academy of Education case in paragraph 4 of the decision the Hon'ble Apex Court has formulated four questions for clarification of eleven Judges constitution Bench decision rendered in T.M.A.Pai Foundation case as under:-

"4.1  In view of the rival submissions the following questions arise for consideration:

1) whether the educational institutions are entitled to fix their own fee structure;

2) whether minority and non minority educational institutions stand on the same footing and have the same rights;

3) whether private unaided professional colleges are entitled to fill in their seats to the extent of 100% and if not to what extent' and

4) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission.

15. After formulating aforesaid four questions, the Hon'ble Apex Court has dealt with question no.1 in paragraphs 5 and 6 of the judgment. Only paragraph 5 of the judgment is relevant for the purposes of instant case, as such is reproduced as under:-

"5. So far as the first question is concerned, in our view the majority judgment is very clear. There can be no fixing of a rigid fee structure by the government . Each institute must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus which must be used for the betterment and growth of that educational institution. In paragraph 56 of the judgment it has been categorically laid down that the decision on the fees to be charged  must necessarily be left to the private educational institutions that do not seek and which are not dependent upon any funds from the government. Each institute will be entitled to have its own fee structure. The fee structure for each institute must be fixed keeping in mind the infrastructure and facilities available. The investments made, salaries paid to the teachers and staff, future plans for expansion and/or betterment of the institution etc. Of course there can be no profiteering and capitation fees cannot be charged. It thus needs to be emphasized that as per the majority judgment imparting of education is essentially charitable in nature. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise. As , at present there are statutes/regulations which govern the fixation of fees and as this Court has not yet considered the validity of those statutes/regulations, we direct that in  order to give effect to the judgment in TMA Pai's case the respective State governments concerned authority shall set up, in each State, a committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative of the Medical Council of India or the All India Council for Technical Education (In short AICTE) depending on the type of institution, shall also be a member. The secretary of the State government in charge of medical education or technical education, as the case may be, shall be a member and secretary of the Committee. The Committee should be free to nominate/ co-opt another independent person of repute, so that total number of members of the Committee shall not exceed 5. Each educational institute must place before this Committee well in advance of the academic year, its proposed fee structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the Committee for their scrutiny . The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fees which can be charged by the institute. The fees fixed by the Committee shall be binding for a period of three years at the end of which period the institute would be at liberty to apply for revision. Once  fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g. donations the same would amount to charging of capitation fee. The governments/appropriate authorities should consider framing appropriate regulations, if not already framed, where-under if it is found that an institution is charging capitation fee or profiteering that institution can be appropriately penalized and also face the prospect of losing its recognition/affiliation."  

                       

16. From a close analysis of the observations made by the Hon'ble Apex Court in paragraph 5 of the decision, it is clear that although the observations have been made to the effect that each institution must be free to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must also be able to generate surplus, which must be used for the betterment and growth of that educational institution. Thus the surplus/profit that can be generated must be only for the benefit/use of that educational institution. Profits/surplus cannot be diverted for any other use or purpose and cannot be used for personal gain or for any other business or enterprise, but at a very out set in paragraph 5 of the decision it has been held that there can be no fixing of rigid fee structure by the Government. In order to give effect to the judgment in TMA Pai case, the respective State Governments /concerned authorities were directed to set up in each State a Committee headed by a retired Judge of the High Court, who shall be nominated by the Chief Justice of that State. The other members are also to be nominated by him from amongst the prescribed categories of the Officers/persons.

17. Not only this, but it has been further observed that each educational institute must place before this Committee well in advance of the academic year, its proposed fee structure, along with all the relevant documents and books of accounts before the Committee for their scrutiny. The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fees. The Committee will be at liberty to approve the fee structure or to propose some other fee, which can be charged by the institute. The fee fixed by the Committee shall be binding for a period of three years, at the end of which period the institute would be at liberty to apply for revision. Once fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g. donations the same would amount to charging of capitation fee. The governments/appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalized and also face the prospect of losing its recognition/affiliation.

18. Thus on a close analysis and scrutiny of the observations made by the Hon'ble Apex Court in paragraph 5 of the judgment, it is clear that the Government was not completely debarred from fixing any fee structure to the Private unaided professional institutions and the power and authority of the Govt. was not expressly excluded by the aforesaid decision. However, while doing so, the Government was restrained/prohibited for fixing of rigid fee structure, as the institute has been given freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. Besides this, since the fee structure has to be determined by the Committee headed by the retired Judge of the High Court nominated by the Chief Justice of that State and the educational institutions are required to place before the Committee well in advance of the academic year, its proposed fee structure alongwith the relevant documents and books of account and the Committee has been authorized to examine their fee structure and determine the proposal made by the institutions in the light of fact whether the fees proposed by the institutions are justified and are not profiteering  or charging capitation fee. The Committee has also been authorised to approve or or to propose some other different fee structure than proposed by the institution itself, which is to be charged by the institutions and binding upon them. These observations clearly lead to a conclusion without leaving any room of doubt that the institutions are not enjoying absolute freedom in fixing their fee structure and charge any fees whatsoever they like on their own sweet-will, rather their freedom has to be reasonably controlled and regulated by the said Committee in the light of justification provided by them on the basis of documents produced before the Committee for determination of fees to be charges by them. Therefore, the submission of the learned counsel for the petitioners that the institutions are free to fix its own fee structure in absolute term without any restriction, is wholly misconceived, misplaced and accordingly liable to be rejected.

19. At this juncture it is necessary to point out that from the perusal of the Government Order dated 15.7.2003 and , it is clear that the Government has prescribed fee structure with liberty to the institutions to fix higher fee structure provided that they place their justification before the standing Committee constituted under the aforesaid Government Order dated 2.8.2003, which has now been substituted by another committee headed by Hon'ble Me.Justice P.K.Sareen vide Government Order dated 20.2.2004, whereby the Committee has been constituted in consonance of the directions made by the Hon'ble Apex Court in Islamic Academy of Education case. Since the earlier Committee constituted by the Government Order dated 2.8.2003 stood substituted by another committee by subsequent Government Order dated 20.2.2004. Therefore, the relief sought by the petitioners for quashing of the Government Order dated 2.8.2003 has been rendered infructuous. In case the petitioners have any grievance with regard to the aforesaid fixation of fee structure, they are at liberty to place their grievance alongwith justification and materials before the Committee constituted for the purpose to decide the issue. In such a situation it cannot be said at all that at the moment the petitioners right has been finally determined, which has caused any prejudice and adversely affected the right of the petitioners by the Government Order dated 15.7.2003. The aforesaid government Orders were issued prior to the decision of Hon'ble Apex Court rendered on 14.8.2003 in Islamic Academy of Education case and since by subsequent Government Order dated 20.2.2004 new Committee has been constituted by replacing earlier committee, therefore, on such subsequent development, the Government Order dated 15.7.2003 has also lost its efficacy in the original term in which it was, rather it should be viewed in the changed scenano by reading the same with necessary modifications   It is also note worthy to mention here that the aforesaid Government order contains the policy decision of the Government, based on guidelines issued by the Government of India/ Central Government. Apart from this, the matter was also discussed by the Committee constituted in pursuance of the order of the Hon'ble Apex Court and headed by the Secretary, Medical Education with the representative of the Management of Medical and Dental colleges. After due consideration of recommendation of the Committee and the proposal received from the management of private Medical/Dental Colleges the Government has issued the aforesaid Government Order in superseding the earlier Government Orders issued in this regard. Normally, this Court does not interfere in its writ jurisdiction in the policy decision taken by the Government unless it is found that such policy decision was taken either on irrelevant consideration or runs contrary to the statutory provisions of law. The petitioners could not point out that the aforesaid policy decision of the Government is either based on irrelevant consideration or it is contrary to any statutory provisions of law. The submission made by the petitioner that the policy contained in the aforesaid Government Order runs contrary to the decision of the Hon'ble Apex Court in Islamic Academy of Education case, as held earlier, is misconceived and misplaced.

20.   Thus in view of the aforesaid discussion, I am of considered opinion that since the petitioners right has not yet been impaired finally by the aforesaid Government Order and on other hand they are at liberty to place their grievance alongwith justification and materials for charging any higher fees than fixed by the Government in the aforesaid G.O. before the Committee in question which is expert body authorised to decide the issue. At this juncture it is necessary to be noticed that if the petitioners are charging fees as indicated in paragraph 11 of the counter affidavit filed on behalf of respondent no.3, which prima facie appears to be very exorbitant amounting to profiteering or charging capitation fee. In such facts and situation, it would not be in the interest of the public and in the interest of justice to permit the petitioners to continue to charge such high fees so long as it is not decided by the Committee headed by the retired Judge of this Court particularly when the petitioners did not submit their proposed fee structure before the Committee headed by Hon'ble Mr.Justice P.K.Sareen, retired Judge of this Court nominated by the Chief Justice of this Court in consonance of the decision of Hon'ble Apex Court rendered in Islamic Academy of Education case , according to the new scheme of admission in pursuance of decision of Hon'ble Apex Court  rendered in T.M.A.Pai's case and Islamic Academy of Education case. Undisputedly, the petitioners have submitted their proposed fee structure for academic session 2003-2004 before the Government as existing earlier prior to the aforesaid decisions of Hon'ble Apex Court and enjoying continuously the interim order of this Court, even after constitution of Committee as claimed by the petitioners in Feb, 2004 and they did not choose to place their proposed fee structure before such Committee. Therefore, on this count also the petitioners cannot be permitted to take advantage of the decision of the Hon'ble Apex Court in Islamic Academy of Education case unless the petitioners themselves are taken steps according to the requirement of the aforesaid decision itself, which in fact they have not taken as yet.

21. However, in any view of the matter, since the jurisdiction of this Court under Article 226 of the Constitution of India is an extra ordinary discretionary jurisdiction, therefore, the discretion has to be confined in refusing to grant the relief asked for by the petitioners on adequate consideration. It does not permit the High Court to grant relief from such consideration alone, as held by the Hon'ble Apex Court in State of Punjab and others Vs. Surendra Kumar and others, reported in AIR 1992 SC 1593. The relevant paragraph 7 of the aforesaid decision reads as under:-

"It is true that the High Court is entitled to exercise its judicial discretion in deciding writ petition or civil revision applications but this discretion has to be confined in declining to entertain petitions and refusing to grant relief, asked for by petitioners, on adequate consideration; and it does not permit the High Court to grant relief on such a consideration alone."

22. Besides this it is necessary to point out that this Court cannot appropriately decide the issue, as the matter has been left to be decided by the expert committee constituted for the purpose. The Court cannot assume the task and function of such committee and decide the matter its own atleast before when the matter in issue for the relevant period has not yet been placed by the petitioners before the Committee constituted for the purpose. This Court is also  handicapped in deciding the actual amount of fees to be charged by the petitioners because of the absence of necessary materials and want of expertise in the matter. Thus in given facts and circumstances of the case, I am of the considered view that the Government Order dated 15.7.2003 fixing the amount of fees chargeable by petitioner institution from the students of M.B.B.S and Dental Courses for academic session 2003-2004 with the liberty to the petitioners to place the materials before the competent Committee for charging higher fees than fixed by the aforesaid Government Order, does not call for any interference and in given facts and circumstances of the case, I could not find any justification for interference under Article 226 of the Constitution of India.

22. Thus in view of the aforesaid discussions and observations made herein before, the writ petition is devoid of merits, hence is liable to be dismissed. Accordingly the same is dismissed.

23. There shall be no order as to costs.

Date:27.5.2005

CPV/-                


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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