Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh, vs Rajeev Gandhi Memorial College Of ... on 8 August, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT APPEAL No.241 of 2019
JUDGMENT:(per Hon'ble the Acting Chief Justice C.Praveen Kumar)
1) Aggrieved by the interim order dated 31.07.2019 passed in W.P.No.10310 of 2019, the State represented by the Principal Secretary preferred the present Appeal under Clause 15 of the Letters of Patent.
2) For the sake of convenience, the parties will hereinafter will be referred to as arrayed in the Writ Petition.
3) The writ petitioners herein are Educational Institutions, which sought for issuance of writ of mandamus to declare G.O.Ms.No.38 Higher Education (EC) Department, dated 23.07.2019, as illegal and contrary to the judgments rendered by the Hon'ble Supreme court in TMA Pai v. State of Karnataka1,P.A.Inamdar v. State of Maharashtra2 and Islamic Academy of Education and another v. State of Karnataka and others3and also in conflict with Rules framed under G.O.Ms.No.6 Higher Education (EC-ii) Department, dated 08.01.2007. They further prayed consequently to direct the 1 (2002)8 SCC 481 2 (2005)6 SCC 537 3 (2003) 6 SCC 697 2 respondents to notify the recommendations submitted by the petitioners to the second respondent to fix the fee structure from the academic year 2019-2020 onwards for the block period 2019-2020 to 2021-2022.
4) The interim prayer, which was sought for in the writ petition is, to direct the respondents to permit the petitioners to collect the fees as per the proposals submitted by the second respondent pending finalization of the main writ petition.
5) By an order dated 31.07.2019, learned Single Judge of this Court, after referring to the contents of the affidavit and facts in issue, suspended the G.O.Ms.No.38 dated 23.07.2019, where the Government ordered that the annual tuition fee fixed for B.E./B.Tech, M.E/M.Tech etc., courses in the State of Andhra Pradesh for the academic year 2018-19 shall be continued to be in operation for the current year 2019-20 as an interim measure until further orders are issued in this regard.
6) The learned Advocate General appearing for the Appellant/State of Andhra Pradesh mainly contends that having regard to the policy of the Government to fully reimburse the fees to the economically and socially backward students and having regard to the fact that new Regulation/Act is awaiting the assent of the Governor, the impugned G.O., came to be issued, as an interim 3 measure, to protect the management of the petitioners/colleges as well as the students. It is pleaded that it is never the case that the recommendations of AFRC will not be implemented, but since the said recommendations of AFRC are not yet notified, implementing of the same without notification may not be proper. He further pleads that every effort would be made by the State to protect not only the students but also the management of the petitioners/institutions. He pleads that a new committee would be constituted, as and when the new Act receives the assent of the Governor and thereafter the entire process would be completed, within a couple of months. He took us through the said G.O., to show the circumstances as to why the Government intends to take necessary steps in fee restructuring for the Block periods 2019-20 to 2021-2022. He further submits that the amount paid at the commencement of this academic year shall be the amount which the student would be paying in the next three years and having regard to the policies the Government intends to restructure the fees. He pleads that an undertaking may be taken from the student for payment of the fees and if ultimately it is fixed more, or return of the amount by the College authorities incase the fees charged is less than the amount paid, which according to him are the usual orders, which are passed in case of this nature.
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7) He further contended that under the doctrine of incidental powers, the Government is justified in issuing the impugned G.O. He placed reliance on the judgments of the Apex Court reported in Union of India v. Modiluft ltd.4and M.A.E.K.K.Varma v. Ramoji Rao and Ors.5to show that interim relief could not be of such a nature, by virtue of which a petition or application, as the case may be, if finally allowed or granted would amount to granting the main relief itself at an interim stage.
8) On the other hand, Sri B.Adinarayana Rao, learned Senior Counsel representing Sri S.V.Muni Reddy, would contend that the impugned G.O., issued by the Government is without jurisdiction. He would contend that G.O.Ms.No.6 dated 08.01.2007 issued by the Government of Andhra Pradesh clearly spells out the powers of the AFRC. He took us through the said G.O., more particularly Guideline No.4 to show the procedure prescribed therein and once the AFRC determines the fees structure, it shall communicate the same to the Government for notification. The fees or scale of the fee determined by AFRC shall be valid for a period of three years. He further pleads that AFRC shall decide weather the fees proposed by the institution is justified and that it should not amount to profiteering or charging of capitation fee. In other words, his plea is 2003(6) SCC 65 4 2014(2) ALD 110 5 5 that once AFRC proposes or recommends fee structure for various courses, the same is binding on the Government and they have no other option except to notify the same. He also contends that State is only a post office and it cannot sit over the recommendations of the AFRC. He also took us through the judgments of the Apex Court inP.A.Inamdar v. State of Maharashtra and TMA Pai v. State of Karnatakato show that the authority of AFRC is a creature of the judgments of the Apex Court. Though various grounds are raised with regard to the competency of the person, who is heading the AFRC and the manner in which he is being appointed, but, in our view, the same requires no consideration as it was never pleaded in the writ petition with regard to the competency or otherwise of AFRC and about the person heading the AFRC. The learned Senior Counsel further contended that if the Government is not going to notify the fees structure fixed for the Block period as suggested by the AFRC, the writ petitioners have every right to charge their own fees. In order to avoid any confrontation/untoward incident, these petitioners have comeforward to the Court for fixing the fee to be collected from the students.
9) Sri D.Prakash Reddy, learned Senior Counsel, who also wanted to be heard, though his Writ Appeals are not listed, while adopting the arguments of the learned Senior Counsel Sri B.Adinarayana Rao, would supplement it stating that the State has 6 not made out a prima-facie case warranting interference with the interim order passed by the learned Single Judge. According to him, the State cannot postpone the process of collection of fee till issuance of notification by the Government or till the regulations or rules are framed to suit their convenience. Without discharging the obligations cast on the appellant, they cannot delay the new process, thereby causing irreparable loss to the management.
10) Sri SudheshAnand, learned counsel appearing for the AFRC, would contend that the process of recommendation for fee for Engineering Courses for the block period 2019-20 to 2021-2022 is completed only in respect of Engineering Courses and not for any other courses. According to him, the matter is still under consideration.
11) The issue that arises for consideration is as to "Whether the order of the learned Single Judge suspending the G.O.Ms.No.38, dated 23.07.2019, whereby the petitioners/institutions permitted to collect the fees fixed for the years 2018-19 as an interim measure, is sustainable?"
12) The petitioners sought an interim relief permitting them to collect fees as per the proposal submitted by the second respondent pending the adjudication of the main writ petition before the learned Single Judge. While alleging that petitioners are the private unaided 7 colleges imparting education in various branches like Engineering, MCA, MBA etc., to various students by fixing their own fees, it is specifically mentioned in para 6 of the affidavit filed in support of the writ petition that pursuant to the notification dated 17.09.2018, the petitioners furnished all the particulars as required and placed the same before the 2nd respondent for fixing the fee structure.
Fee particulars in the 1stPetitioner-Institution are as follows :
Courses Existing Fee for Proposed fee
the block period mentioned in the
2016-17 to W.P. for the
2018-19 blocked period
2019-2020 to
2021-22
Engineering 86,800
B.E. and -- 1,35,000
B.Tech. courses
M.Tech. and -- 85,000
ME
MBA -- 70,000
MCA -- 70,000
Fee particulars in the 2ndPetitioner-Institution are as follows :
Courses Existing Fee Proposed fee
for the block mentioned in the
period 2016-17 W.P. for the
to 2018-19 blocked period
2019-2020 to
2021-22
Engineering 59,500
B.E. and -- 72,000
B.Tech. courses
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Fee particulars in the 3rdPetitioner-Institution are as follows :
Courses Existing Fee Proposed fee
for the block mentioned in the
period 2016-17 W.P. for the
to 2018-19 blocked period
2019-2020 to
2021-22
Engineering 52,500
B.E. and B.Tech. -- 90,530
courses
M.Tech. -- 90,505
Fee particulars in the 4thPetitioner-Institution are as follows :
Courses Existing Fee Proposed fee
for the block mentioned in the
period 2016-17 W.P. for the
to 2018-19 blocked period
2019-2020 to
2021-22
Engineering 72,700
B.E. and B.Tech. -- 1,17,466
courses
M.Tech./M.E -- 1,09,800
MCA -- 92,080
MBA -- 68,526
13) The main contention of the learned counsel for petitioners is
that the colleges, which are unaided, can fix their own fee structure and at best, the AFRC has to decide the fee to be paid in accordance with G.O.Ms.No.6, dated 8.1.2007. The Fee Regulatory Committee has to take into consideration certain facts like location of institution, nature of the professional course, the cost of available infrastructure, the expenditure on administrative and maintenance, reasonable 9 surplus required for growth and development of the Institutions, the revenue foregone on account of waiver of fee, if any, in respect of students belonging to Scheduled Castes, Scheduled Tribes and wherever applicable to the socially and educationally backward classes and other economically weaker sections of the society to such extent as shall be notified by the Government from time to time, any other relevant factor vide clause 4 sub-clause (iv) of G.O.Ms.No.6 dated 08.01.2007 and on submission of the recommendation by the AFRC. It is also specifically contended that the Government has no role to play in fixing the fees by AFRC, except issuing notification. According to him, a perusal of G.O.Ms.No.6 show certain parameters are laid down for fixation of fees structure for each course run by the Private Un-aided Institutions offering professional courses in the State. The courses referred to above are admittedly professional courses and the Government is bound by G.O.Ms.No.6. But, the power of the Government to issue G.O., which is impugned in the Writ Petition, is not questioned directly, but in the present petition the relief claimed is related to permitting the educational institutions i.e., petitioners 1 to 4 to collect fees fixed by them and submitted to second respondent/AFRC for various courses referred to above. The learned Single Judge, while granting interim order, suspended operation of G.O.Ms.No.38 dated 23.07.2019, which enabled the professional colleges to collect fee fixed for the 10 academic year 2018-19 to the current year 2019-20 also as an interim measure.
14) The learned counsel for the second respondent/AFRC states that the AFRC recommended fees structure for Engineering courses only and not for the other courses like MCA, MBA, Pharmacy and other professional courses. In such a case, permitting the petitioners to collect the fees for various professional courses as recommended by the AFRC does not arise. Merely because the petitioners submitted proposals for enhancement of fees structure of various courses, in the absence of any recommendations by the second respondent/AFRC, the very grant of such relief permitting the petitioners to collect the fee determined in respect of other courses would not arise. Therefore, allowing the institutions to collect the fees at the rate alleged to have been proposed by the second respondent to the Government prima facie would be improper. It is to be noted that the reason for granting such interim relief is finding prima facie case in favour of these petitioners and so also balance of convenience and sustaining irreparable loss in the event of interim order not being granted. Prima facie case means a fair chance of succeeding in the main case. In the present facts of the case the contention of the petitioners before us is that the Government has no authority to issue such G.O., but such question, if determined in this appeal at this stage, nothing survives for adjudication in the main 11 writ petition, which is pending before the learned Single Judge. But, at the same time, balance of convenience means inconvenience being caused to the parties to the petition and it is the duty of the Court to strike the balance between the inconvenience caused to both the parties. In the case on hand, the petitioners' grievance is that in case no interim order is granted, it will cause inconvenience to conduct various courses in their educational institutions and at the same time, it would defeat the very purpose of appointing AFRC to fix the fees structure to various courses in the professional colleges. The court has to strike the balance between the inconvenience caused to the students as well as the institution. While considering grant of interim order, the learned Single Judge also concluded that irreparable loss would be caused to the petitioners if no interim order is granted. But to avoid such an irreparable loss, the Court may suggest a method to avoid such loss anticipated to be caused in case no interim order is granted.
15) The petitioners' counsel raised several contentions with regard to power of the state based on various judgments viz., TMA Paiv. State of Karnataka(supra) and the case in Islamic Academy of Education and another v. State of Karnataka and others(supra) and PA Inamdar v. State of Maharashtra(supra). The Apex Court in PA Inamdar's case held as under :
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"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 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 13 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 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 set up 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 commercialisation 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 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.
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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."
16) Thus, even Non-Minority unaided institutions can be subjected to regulatory measures with a view to curb commercialization of education, profiteering in it and exploitation of students. In the interest of student community, professional educational institutions should be made accessible on the criteria of non-exploitation permitting all eligible students on uniform basis. In view of principles laid down, it is the duty of the State to protect the interests of the student community and make education accessible to everyone based on merit and non-exploitation basis. To see that the student community are not exploited, the Supreme Court issued guidelines for appointment of Fee Regulatory Committee in the earlier judgments viz, TMA Pai v. State of Karnataka and Islamic Academy of Education case .
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17) The arguments advanced are only to persuade the Court to sustain the impugned order and the said issues cannot be decided in appeal filed under Clause 15 of Letters Patent when the main writ petition is pending. As stated by Sri B.Adinarayana Rao, the learned Senior Court, these arguments came to be advanced only to prima facie establish that the authority has no power to issue this G.O. We feel that the Court is not required to give any findings on those issues at this stage.
18) One of the contentions raised by the learned Advocate General is that the Court can issue directions depending upon the facts and circumstances of the case with regard to the fee structure so as to protect the educational institutions and students. The learned Advocate General has drawn the attention of this court to the judgment of the Apex Court in Modern Dental College v. State of M.P. &Ors.in W.P.No.358 of 2004 & batch, dated 8.9.2010,wherein the Apex court in somewhat similar circumstances laid down certain guidelines. In the said case the fee fixation committee prescribed fee structure for the state quota seats and the management quota seats by way of the order dated 31.5.2004 pending final determination. The State Government however ordered different fee structure for the state quota and management quota seats as per the order dated 10.12.2004. Having regard to the facts and circumstances of the case the Apex Court while allowing the writ petitions held as under : 16
"In the event of the fees determined by the Committee being more than what has been collected from the students of 2003-04 and 2004-05, it is open to the colleges to recover the balance by enforcing the bank guarantee or undertaking, if any, obtained from the students. In so far as 2003-04 is concerned, if there is any non- recovery or shortfall in recovery, with reference to any student, the same shall be made good by the State Government in accordance with the order dated 29.9.2003 (extracted above). It is made clear that the said indemnity by the State Government is only with reference to four colleges mentioned in the order dated 29.9.2003 in regard to 2003-2004. The State will have no liability to pay any difference in fee in so far as other colleges are concerned. If the fee determined by the Committee is less than what has been already recovered, the concerned College shall refund the excess fee collected to the respective student."
19) It is also to be noted here that once the fee to be paid is notified by the Government the same has to be construed for the next three years, which may cause loss either to the students or to the institutions, as having regard to the new Act and the policy awaiting the assent of the Governor.
20) For the aforesaid reasons, the order of the learned Single Judge suspending the impugned G.O. is modified as follows :
The writ petitioners herein are permitted to collect the fee fixed for the block period 2018-2019 for the engineering and other courses and obtain a bank guarantee from the students admitted in those professional courses to an extent of 50% of the difference of fee claimed by the writ petitioners-colleges or the fees recommended by AFRC to the Government, whichever is less, for the block period 17 2019-2020 to 2021-2022, which will be in force till the new fee structure is notified by the Government. The Advocate General informs that the State Government will inform to the colleges as well as to the appropriate authorities about the fees claimed by the colleges and recommended by AFRC. Students shall be informed about the pendency of the writ petition before this Court regarding fees structure and they are not entitled to claim any equities thereafter. We hope that the new fee structure taking care of the students and management shall be notified at the earliest preferably by the end of this year. In case, the fee recommended and notified by the Government is more than the fee collected pursuant to this order, the petitioners-educational institutions are at liberty to invoke the bank guarantee to the extent of difference between fee paid and in case it is less, the petitioners shall return the amount to the students or adjust the same, if permissible.
21) Accordingly, the Writ Appeal is disposed of. No order as to costs.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR __________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 08.08.2019 SKMR