Himachal Pradesh High Court
Maharishi vs State Of H.P. And Others' on 22 November, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
20
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
ON THE 22nd DAY OF NOVEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 7007 of 2021
Between:
1. MAHARISHI
MARKANDESHWAR
UNIVERSITY, THROUGH
REGISTRAR,SULTANPUR ROAD,
KUMARHATTI, DISTRICT SOLAN,
HP
2.MAHARISHI MARKANDESHWAR
MEDICAL COLLEGE AND
HOSPITAL CONSTITUENT
INSTITUTE OF MAHARISHI
MARKANDESHWAR
UNIVERSITY THROUGH
REGISTRAR, SULTANPUR
ROAD, KUMARHATTI,
DISTRICT SOLAN, HP
PETITIONERS
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(BY MR. K.D. SHREEDHAR,
SENIOR ADVOCATE WITH
MS.SHREYA CHAUHAN,
ADVOCATE)
.
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS SPECIAL
SECRETARY (HEALTH) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SECRETARIAT,
SHIMLA171002
2. STATE OF HIMACHAL PRADESH
THROUGH ITS SECRETARY
(HIGHER EDUCATION) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SECRETARIAT,
SHIMLA171002.
3. THE DIRECTOR, MEDICAL
EDUCATION & RESEARCH,
DIRECTORATE OF MEDICAL
EDUCATION & RESEARCH,
KASUMPATI, SHIMLA9.
4. STATE FEE FIXATION
COMMITTEE, THROUGH ITS
CHAIRMANCUMSECRETARY
(HEALTH) TO THE GOVT OF HP,
SHIMLA, HIMACHAL PRADESH.
...RESPONDENTS
(BY MR. RAJINDER DOGRA,
SENIOR ADDITIONAL
ADVOCATE GENERAL WITH MR.
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SHIVPAL MANHANS, MR. VINOD
THAKUR AND MR. HEMANSHU
MISHRA, ADDITIONAL
ADVOCATE GENERALS)
.
This petition coming on for admission this
day, Hon'ble Mr. Justice Tarlok Singh Chauhan, J
passed the following:
ORDER
The instant petition has been filed for grant of the following substantive relief(s):
"a) Issue a writ of certiorari, order or direction quashing the impugned letter dated 09-09-2021 as illegal;
b) Issue a writ of certiorari, order or direction quashing the impugned proceedings of the meeting of Fee Structure Committee dated 22-09-2021 issued by Respondent No.1 to the extent it restricts the petitioner from charging 10% yearly hike in the annual fee for the academic year 2021-22 in respect of M.B.B.S. Course being run by petitioner No.2-college;
c) Issue a Writ of mandamus, order or direction permitting the petitioner to charge the fee for the academic year 2021-22 in respect of M.B.B.S course with 10% yearly hike till the completion of course."
2. This Court on 16.11.2021 passed the following order:
::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20The instant petition has been filed for grant of the following reliefs:-
"a) Issue a writ of certiorari, order or direction quashing the impugned letter dated 09-09-2021 as .
illegal;
b) Issue a writ of certiorari, order or direction quashing the impugned proceedings of the meeting of Fee Structure Committee dated 22-09-2021 issued by Respondent No.1 to the extent it restricts the petitioner from charging 10% yearly hike in the annual fee for the academic year 2021-22 in respect of M.B.B.S. Course being run by petitioner No.2-college;
c) Issue a Writ of mandamus, order or direction permitting the petitioner to charge the fee for the academic year 2021-22 in respect of M.B.B.S course with 10% yearly hike till the completion of course."
2. Records reveal that even though the Fee Structure Committee held on 22.09.2021 has approved the fee structure for the Course of MBBS and other Medical Courses in respect of Maharishi Markandeshwar University and also in respect of Baddi University and Career Point University for the Academic Session 2021-22. But, the fee so fixed is far less than the one which had been fixed for the previous year, more particularly, 2019-2020. Why the fee rather than being increased by 10%, as was directed by this Court vide its judgment dated 20.05.2020, in a batch of petitions, lead being CWP No. 1465 of 2018 titled 'Maharishi Markandeshwar University and another vs. State of H.P. and others', has been decreased is not at all forthcoming, even in the proceedings of the meeting which have been placed on record and are available at pages 133 to 135 of the paper book.
This Court in CWP No. 1235 of 2007 titled 'Bhojia Dental College & Hospital & another vs. State of H.P. ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 and others', decided on 17.09.2013, has clearly held that the Fee Structure Committee while fixing the fees is required to give reasons which, as stated above, are conspicuously absent in the present fee structure. The relevant observations .
of the judgment cited supra are contained in paras 20, 21 and 38 which read as under:-
"20. The other authority of the Constitution Bench of the Apex Court on the question of fee structure, is, the case of P.A. Inamdar and others vs. State of Maharashtra and others, 2005 6 SCC 537. The Apex Court restated the principle expounded by it in the earlier decisions. While dealing with question Nos.3 and 4 posed in paragraph 27 of the judgment, the Apex Court in paragraphs 139 to 151 observed thus:
"Q.3. Fee; regulation of
139. To set up a reasonable fee structure is also a component of "the right to establish and administer an institution" within the meaning of Article 30(1) of the Constitution, as per the law declared in Pai Foundation. Every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly, or in any form (Paras 56 to 58 and 161 [Answer to Q.5(c)] Of Pai Foundation are relevant in this regard).
Capitation Fees
140. Capitation fee cannot be permitted to be charged and no seat can be permitted to be appropriated by payment of capitation fee.
'Profession' has to be distinguished from 'business' or a mere 'occupation'. While in business, and to a certain extent in occupation, there is a profit motive, profession is primarily a service to society wherein earning is secondary or incidental. A student who gets a professional degree by payment of capitation fee, once ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 qualified as a professional, is likely to aim more at earning rather than serving and that becomes a bane to the society. The charging of capitation fee by unaided minority and non-minority institutions for professional .
courses is just not permissible. Similarly, profiteering is also not permissible. Despite the legal position, this Court cannot shut its eyes to the hard realities of commercialization of education and evil practices being adopted by many institutions to earn large amounts for their private or selfish ends. If capitation fee and profiteering is to be checked, the method of admission has to be regulated so that the admissions are based on merit and transparency and the students are not exploited. It is permissible to regulate admission and fee structure for achieving the purpose just stated.
141. Our answer to Question-3 is that every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering. No capitation fee can be charged.
Q.4. Committees formed pursuant to Islamic Academy
142. Most vehement attack was laid by all the learned counsel appearing for the petitioner-applicants on that part of Islamic Academy which has directed the constitution of two committees dealing with admissions and fee structure. Attention of the Court was invited to paras 35,37, 38, 45 and 161 (answer to question 9) of Pai Foundation wherein similar scheme framed in Unni Krishnan was specifically struck down. Vide para 45, Chief Justice Kirpal has clearly ruled that the decision in Unni Krishnan insofar as it framed the scheme relating to ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 the grant of admission and the fixing of the fee, was not correct and to that extent the said decision and the consequent directions given to UGC, AICTE, MCI, the Central and the State Governments etc. are overruled.
.
Vide para 161, Pai Foundation upheld Unni Krishnan to the extent to which it holds the right to primary education as a fundamental right, but the scheme was overruled. However, the principle that there should not be capitation fee or profiteering was upheld. Leverage was allowed to educational institutions to generate reasonable surplus to meet cost of expansion and augmentation of facilities which would not amount to profiteering. It was submitted that Islamic Academy has once again restored such Committees which were done away with by Pai Foundation.
143. The learned senior counsel appearing for different private professional institutions, who have questioned the scheme of permanent Committees setup in the judgment of Islamic Academy, very fairly do not dispute that even unaided minority institutions can be subjected to regulatory measures with a view to curb commercialization of education, profiteering in it and exploitation of students. Policing is permissible but not nationalization or total take over, submitted Shri Harish Salve, the learned senior counsel. Regulatory measures to ensure fairness and transparency in admission procedures to be based on merit have not been opposed as objectionable though a mechanism other than formation of Committees in terms of Islamic Academy was insisted on and pressed for. Similarly, it was urged that regulatory measures, to the extent permissible, may form part of conditions of recognition and affiliation by ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 the university concerned and/or MCI and AICTE for maintaining standards of excellence in professional education. Such measures have also not been questioned as violative of the educational rights of either .
minorities or non- minorities.
144. The two committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy, are in our view, permissive as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)
(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution.
145. The suggestion made on behalf of minorities and non-minorities that the same purpose for which Committees have been set up can be achieved by post-
audit or checks after the institutions have adopted their own admission procedure and fee structure, is unacceptable for the reasons shown by experience of the educational authorities of various States. Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 by the paying capacity of the candidates would be impossible to curb.
146. Non-minority unaided institutions can also be subjected to similar restrictions which are found .
reasonable and in the interest of student community.
Professional education should be made accessible on the criterion of merit and on non-exploitative terms to all eligible students on an uniform basis. Minorities or non- minorities, in exercise of their educational rights in the field of professional education have an obligation and a duty to maintain requisite standards of professional education by giving admissions based on merit and making education equally accessible to eligible students through a fair and transparent admission procedure and on a reasonable fee-structure.
147. In our considered view, on the basis of judgment in Pai Foundation and various previous judgments of this Court which have been taken into consideration in that case, the scheme evolved of setting up the two Committees for regulating admissions and determining fee structure by the judgment in Islamic Academy cannot be faulted either on the ground of alleged infringement of Article 19(1)(g) in case of unaided professional educational institutions of both categories and Article 19(1)(g) read with Article 30 in case of unaided professional institutions of minorities.
148. A fortiori, we do not see any impediment to the constitution of the Committees as a stopgap or adhoc arrangement made in exercise of the power conferred on this Court by Article 142 of the Constitution until a suitable legislation or regulation framed by the State steps in. Such Committees cannot be equated with Unni ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 Krishnan Committees which were supposed to be permanent in nature.
149. However, we would like to sound a note of caution to such Committees. The learned counsel appearing for .
the petitioners have severely criticised the functioning of some of the Committees so constituted. It was pointed out by citing concrete examples that some of the Committees have indulged in assuming such powers and performing such functions as were never given or intended to be given to them by Islamic Academy. Certain decisions ofsome of the Committees were subjected to serious criticism by pointing out that the fee structure approved by them was abysmally low which has rendered the functioning of the institutions almost impossible or made the institutions run into losses. In some of the institutions, the teachers have left their job and migrated to other institutions as it was not possible for the management to retain talented and highly qualified teachers against the salary permitted by the Committees. Retired High Court Judges heading the Committees are assisted by experts in accounts and management. They also have the benefit of hearing the contending parties. We expect the Committees, so long as they remain functional, to be more sensitive and to act rationally and reasonably with due regard for realities. They should refrain from generalizing fee structures and, where needed, should go into accounts, schemes, plans and budgets of an individual institution for the purpose of finding out what would be an ideal and reasonable fee structure for that institution.
150. We make it clear that in case of any individual institution, if any of the Committees is found to have exceeded its powers by unduly interfering in the ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 administrative and financial matters of the unaided private professional institutions, the decision of the Committee being quasi-judicial in nature, would always be subject to judicial review.
.
151. On Question-4, our conclusion, therefore, is that the judgment in Islamic Academy, in so far as it evolves the scheme of two Committees, one each for admission and fee structure, does not go beyond the law laid down in Pai Foundation and earlier decisions of this Court, which have been approved in that case. The challenge to setting up of two Committees in accordance with the decision in Islamic Academy, therefore, fails. However, the observation by way clarification, contained in the later part of para 19 of Islamic Academy which speaks of quota and fixation of percentage by State Government is rendered redundant and must go in view of what has been already held by us in the earlier part of this judgment while dealing with Question No.1."
21. From the extracted portion of the aforesaid decisions, there is no manner of doubt that it is the prerogative much less right of the educational institution to decide its own fee structure. The Review Committee has to evaluate as to whether that fee structure does or does not result in profiteering, commercialization or demanding capitation fee. The Review Committee is expected to examine the justification given by the educational institution and record its satisfaction, one way or the other, by a speaking order and reasons to be recorded therefor. That Committee has to bear in mind the broad contours delineated by the Apex Court in paragraph 155 of the Islamic Academy and paragraph 149 of P.A. Inamdar.
::: Downloaded on - 31/01/2022 23:18:34 :::CIS 2038. A priori, we may now examine the validity of the final decision of the Review Committee dated 2.6.2008. Although, the Review Committee constituted under .
Section 7 of the Second Act of 2006 took notice of the final fees fixed by the Fee Committee of Justice Bhatnagar and the claim of the petitioners to allow them to charge fees per student @ 84,000/- which claim was supported by documentary evidence, evincing that the petitioner-College was incurring expenditure in excess of the amount collected from the students by way of fees. However, the Review Committee in the first place determined the provisional fees @ Rs. 50,000/- and by the impugned decision confirmed that amount merely because it may not be proper to recommend any change in the fees fixed for State-quota students by the Government at Rs. 50,000/- per student, per annum at such belated stage as the admission process was concluded in the years 2004-05 and 2005-06. The additional reason to be discerned from paragraph 3 of the impugned decision is that the said amount was 2.5 times more than the fees of Rs. 20,000/- per student, per annum fixed by the Government for the academic year 2003-04. Both these reasons, in our opinion, are untenable. The Review Committee is not supposed to act as a post office. It is its bounden duty to evaluate the factual basis about the actual expenditure incurred by the concerned College for imparting education to its students entitling it to charge commensurate fees and keeping in mind the dictum of the Apex court in paragraph 155 of Islamic Academy and paragraph 149 of P.A. Inamdar . In other words, the Review Committee is expected to assess as to whether the fees to be ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 charged by the College would result in profiteering, commercialization or collection of capitation fees. For arriving at that conclusion, the Review Committee is not only expected to analyze the documents and books of .
accounts; but is also obliged to give opportunity to the Management to explain its stand-point to justify the fee structure claimed by it. The Review Committee has to analyze that claim and juxtapose it with the documents and material produced by the Management. It is also expected to answer the matter in issue, one way or the other, by a speaking order, by recording reasons therefor."
Therefore, we direct the Fee Structure Committee to reconvene its meeting for fixing of the fee structure for the Course of MBBS and other Medical Courses in respect of the petitioners for the session 2021-22, under the chairmanship of Secretary (Health) to the Government of Himachal Pradesh, in his Office, in the Committee Hall, Armsdale Building, H.P. Secretariat, on 18.11.2021 at 3.00 p.m. Such decision be placed on record before this Court on the next date of hearing. List on 22.11.2021."
2. The respondentState in compliance with the aforesaid direction has now placed on record the instructions alongwith minutes of the meeting convened on 18.11.2021, which goes to indicate that the fee structure has now been revived on the basis of recommendations made by the fee ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 structure committee for the year 202122 and the same reads as under:
.
"Proceedings of the meeting of Fee Structure Committee reconvened on 18.11.2021 at 3:00 P.M. under the chairmanship of Sh. Amitabh Avasthi, Secretary (Health) to the Govt. of Himachal Pradesh in the Committee Hall, Armsdale Building, HP Secretariat for fixing of the fee structure for the course of MBBS and other medical courses inrespect of Maharishi Markendeshwar University (MMU for the academic session 202122 as per order of Hon'ble High Court of Himachal Pradesh dated 16.11.2021. Following members were present in the meeting.
1. Dr. R. Pathania, Directorate of Medical Education & Research, H.P.
2. Dr. Anita Mahajan, Directorate of Health Services, H.P.
3. Sh. Navneet Kapoor, Addl. Secy. (Hr. Edu.) to the Govt. of H.P.
4. Sh.Anil Saunkhala, Resident Director, PHDCCI, Udyog Bhawan, Shimla.
5. Sh. Rohit Sharma, Executive Officer PHDCCI, Udyog Bhawan, Shimla.
6. Dr.J.K.Chandel, Deputy Director Ayurveda, Directorate of Ayush, SDA Complex Kasumpti, Shimla.
7. Dr.Sandeep Rattan, Deputy Director, Deptt. Of Animal Husbandry, H.P.
8. Sh. Chander Mohan Sharma, Deputy Director, Deptt. Of Economic & Statistics.
9. Sh. Vinod Thakur JLR (Law) to the Govt. ofH.P.
10. Sh. Narender Sharma, DC (F&A) of Directorate of Medical Education & Research, H.P.
11. Sh.Devi Ram, Deputy Registrar (ACAD) HPU Shimla
12. Sh. Sanjeev Garg, Secretary MMU, Solan.
13. Sh. Ajay Singal, Registrar MMU, Solan.::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20
14. Sh. R.K. Kaushik, Finance Officer MMU, Solan. The meeting started with a welcome note by Member Secretary Dr. Harish Kumar. The committee was apprised of the directions of the Hon'ble High Court of Himachal Pradesh.
.
The Chairman of the committee gave his opening remarks and requested the representatives of the MMU to propose the fee structure for MBBS course and other medical courses for academic session 202122 and to explain its standpoint to justify for fee structure claimed by it. The MMU representatives apprised the committee that they wanted 10% compounded hike per year in the fee structure as proposed in the meeting held on 22.9.2021 for MBBS course only, for other medical courses fee structure notified by the Govt. vide its notification No. EDNAKha (9)3/2021 Fee dated 29th September, 2021 may be retained. They justified their claim rby presenting balance sheet of financial year 201920 (enclosed annexure as "A") and asserted that 10% increase per year is required to meet out the salary and gratuity of faculty and staff and to impart the quality education to its students. The university has its income from tuition fee charged from the students and hospital run by it. As per their proposal, year wise fee to be charged from the students is as under: Fee structure proposed by management of Maharishi Markendeshwar University for the year 202122 (10% compounded hike in subsequent years) Name Amount in Rupees of the Categor y Course MBBS IRDP/BPL 1st year 53,240/-
2nd year 58,564/- ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 3rd year 64,420/- 4th year 70,862/- final year 77948/- Total 3,25,034 . st State quota 1 year 8,47,000/- 2nd year 9,31,700/- 3rd year 10,24,870/- 4th year 11,27,357/- final year 12,40,093/- Total 51,71,020 Management 1st year 14,52,000/- Quota 2nd year 15,97,200/- 3rd year 17,56,920/- r 4th year 19,32,612/- final year 21,25,873/- Total 88,64,605/- Amount in USD NRI quota 1st year 38326 2nd year 42159 3rd year 46374 4th year 51012 final year 56113 Total 233984
They did not elaborate/present the details of the financial status of university for the financial year 2020-21.
This was followed by detailed discussion. Every member of the committee and the representative of MMU was given opportunity to put forward his/her point of view to find out reasonable fee structure.::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20
One of the committee members namely Sh. Chander Mohan Sharma, Deputy Director, Deptt. Of Economic & Statistics presented consumer Price Index of Industrial Workers (Base Year) 2016=100 (annexure "B") & the same is reproduced as under:
.
Consumer Price Index of Industrial Workers (Base Year) 2016=100 Himachal Pradesh All India Month/Ye GenInflation Edu. Inflation Gen Inflation Edu. Inflation ar Sept 120. 3.15 112.7 0.09 118.1 4.40 116.6 0.43 . 20 8 Sept r 124. 112.8 123.3 117.1 . 21 6 The copy of the fee structure of neighboring state Punjab vide Notification No. 05.09.2019 SHB-III/3616 dated 29.05.2020 issued by Department of Medical Education & Research Govt of Punjab is available on website wwwpunjabmedicaleducation.org.in is enclosed as per annexure "C" was also perused by member of the committee. On the basis of fee structure proposed and justification given in support of fee claimed by the representatives of MMU for the course of MBBS for the academic session commencing w.e.f. 2021-22 and perusal of available record and also keeping the interest of the students community inview, the committee members unanimously decided that 10% hike infee per year is justified. However, the fee being charged and proposed hike of 10% per year in compounded manner by MMU is not in order. Therefore, to make it clear the detailed fee structure recommended by the fee structure ::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20 committee for MBBS course in respect of MMU Solan for the batch commencing from 2021-22 is as under: Fee structure recommended by fee fixation committee for MBBS Course in r/o Maharishi Markendeshwar University .
for the year 2021-22 (10% non compounded increase per year) Name of the Amount in Rupees Category Course MBBS IRDP/BPL 1st year 53,240/-
2nd year 58,564/-
3rd year 63,888/-
r 4th year 69,212/-
final year 74,536/-
Total 3,19,440/-
State quota 1st year 8,47,000/-
2nd year 9,31,700/-
3rd year 10,16,400/-
4th year 11,01,100/-
final year 11,85,800/-
Total 50,82,000
Management 1st year 14,52,000/-
Quota 2nd year 15,97,200/-
3rd year 17,42,400/-
4th year 18,87,600/-
final year 20,32,800/-
Total 87,12,000/-
Amount in USD
NRI quota 1st year 38326
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2nd year 42159
3rd year 45991
4th year 49824
final year 53656
.
Total 229956
Further, the committee recommended that the fee structure notified by the Govt. of H.P. for other medical course in r/o MMU Solan for the academic sesssion 202122 vide its notification dated 29th September, 2021 may be kept as such. The representatives of MMU Solan have no issue with regard to the fee structure for the other medical courses.The fee structure for other medical courses notified vide Govt. notification 22.09.2021 is as under:
Name of the Course Approved Fee Structure r for the Academic Session 2021-22 vide Govt.
notification no. dated 29.09.2021 Tuition & all other Fees (in Rs.) (Annual in two equal instalments) MS (Anatomy) 5,84,000/-
MD (Bio-Chemistry) 9,04,000/-
MD (Physiology) 5,84,000/-
MD (Pharmacology) 9,04,000
MD (Microbiology) 9,04,000
MD (Forensic Medicine) 7,23,000
Diploma Radiography Techniques 50,000
Diploma Opthalmic (Optometric) 50,000
Diploma in Renal Dialysis 45,000
The meeting ended with a vote of thanks to the chair, committee members and representatives of MMU Solan."::: Downloaded on - 31/01/2022 23:18:34 :::CIS 20
3. Now when the Fee structure committee has made its recommendations, therefore, the .
instant petition is rendered infructuous. However, since these are only recommendations, let formal notification incorporating therein the aforesaid fee structure be issued by the respndent within three days. Pending application(s), if any, are also disposed of.
r To come up for compliance on 25.11.2021 when the copy of the notification shall also be placed on record.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge November 22, 2021 Kalpana ::: Downloaded on - 31/01/2022 23:18:34 :::CIS