Uttarakhand High Court
Director vs Lalit Mohan Tewari & Others on 9 October, 2018
Bench: Rajiv Sharma, Manoj K. Tiwari
Reserved on August 16, 2018
Pronounced on October 09, 2018
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 596 of 2018
Director, Himalaya Ayurvedic Medical College
& another ... Appellants
Vs
Lalit Mohan Tewari & others ... Respondents
With
Special Appeal No. 609 of 2018
Director, Himalaya Ayurvedic Medical College & another ... Appellants
Vs
Yash Kumar Saini & others ... Respondents
With
Special Appeal No. 610 of 2018
Director, Himalaya Ayurvedic Medical College & another ... Appellants
Vs
Prabhat Saini & others ... Respondents
With
Special Appeal No. 611 of 2018
Director, Himalaya Ayurvedic Medical College & others ... Appellants
Vs
Rajat Rana & others ... Respondents
With
Special Appeal No. 651 of 2018
Director, Himalaya Ayurvedic Medical College & another ... Appellants
Vs
Shradha Agarwal & others ... Respondents
Mr. Rakesh Thapliyal, Advocate for the appellants.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand.
Mr. G.C. Kandpal and Mr. Vinod Tiwari, Advocates for the private respondents.
Coram: Hon'ble Rajiv Sharma, ACJ
Hon'ble Manoj K. Tiwari, J.
Per: Hon'ble Manoj K. Tiwari, J.
1. These appeals arise out of judgment dated 09.07.2018 passed by learned Single Judge in WPMS No. 3433 of 2017 and other connected matters. Since common question of fact and law are involved in these appeals, therefore, all these appeals are being heard and decided together. However, for the sake of clarity, facts of SPA No. 596 of 2018, are being taken into consideration for disposal of these matters.
22. The private respondents are students of Bachelor of Ayurvedic Medicine & Surgery (BAMS) course, Batch 2013 and 2014, in a private college i.e., Himalaya Ayurvedic Medical College & Hospital. The tuition fee, at the time of their admission, was `80,000/- per year, which was enhanced to `2,15,000/- per year by the State Government vide Government Order dated 14.10.2015. The affiliating University, i.e. Uttarakhand Ayurvedic University authorized the Ayurvedic College to charge enhanced fee vide letter dated 10.10.2016 and the college issued a notice 18.11.2016 demanding the revised tuition fee from its students. Thus feeling aggrieved, respondents approached learned Single Judge by filing writ petition (M/S) No. 3433 of 2016.
3. Himalayan Ayurvedic Medical College & Hospital filed a counter affidavit stating that in the information brochure, supplied to the students at the time of admission, there was a stipulation that fee can be revised as per the Government Orders. It was further stated that fee was last revised in the year 2007 as per the recommendation of the Fee Regulatory Committee and thereafter, there has been three fold increase in the expenses incurred by the management for running the course. It was further stated that Principal of the College had requested the State Government to revise the fee vide representation dated 22.10.2013 and ultimately the State Government took a decision to revise the tuition fee from `80,000/- per year to `2,15,000/- per year in respect of BAMS course.
4. Affiliating University, i.e. Uttarakhand Ayurvedic University filed a separate counter affidavit stating that a 3 Fee Regulatory Committee headed by Justice Sri Laxmi Bihari (Retired) had determined the tuition fee in the year 2007. It was further stated that the said determination was for a period of one year only, i.e. Academic Session 2007-2008, as the private medical colleges were facing difficulty to meet the expenses, therefore, they requested the State Government to revise the fee structure. On 25.08.2014, a meeting of Fee Regulatory Committee was held in which it was decided that a notice be published in newspapers calling upon the concerned colleges to submit necessary documents and account books in support of their claim within stipulated time, so that, appropriate decision may be taken regarding fee revision. It was further stated that the Additional Secretary, Department of Ayush Education issued one letter dated 26.02.2015 to various authorities, including Registrar, Uttarakhand Ayurvedic University, whereby they were requested to get the public notice published in terms of direction issued by Fee Regulatory Committee. The counter affidavit filed by the University is, however, silent regarding the fee determination, if any, made by the Committee.
5. Learned Single Judge allowed the writ petition, filed by the private respondents, vide judgment dated 09.07.2018. The operative portion of the said judgment is extracted below:-
"10. Learned counsel for the State would argue that this increase in fee has been done after seven years. The last fixation was in the year 2007. This may be true, but again it is wrong to increase fee in the manner it has been done, for the reason that firstly, the students who have taken admission did that knowing 4 that they have to pay a fee of Rs. 80,000/- (Rupees Eighty Thousand only), secondly, the increase in fee is not based upon any scientific calculation by experts or the body as contemplated under law and, thirdly the fixation is retrospectively done. The order of the State Government therefore is unsustainable.
11. In view of the above, all the writ petitions are allowed. Orders dated 14.10.2015 and 10.10.2016, notice dated 18.11.2016 and the demand letters dated 31.05.2017 are hereby quashed and set aside. It is, however, made clear that in future the Government and the University will always be at liberty to revise this fee, but it must be based on the recommendation of the Fee Regulatory Committee, and should be prospective.
12. It is made clear that in case any private medical college has already recovered this fee from the students, the enhanced amount shall be returned to the students forthwith within a period of two weeks from the date a certified copy of this order is produced before the Principal of the college concerned."
6. Heard learned counsel for the parties and perused the record.
7. Admittedly, the field is occupied by Uttarakhand Unaided Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 which was enacted in the light of the judgment rendered by Hon'ble Supreme Court in the cases of Islamic Academy of Education Vs State of Karnataka reported in (2003) 6 SCC 697 and P.A. Inamdar Vs State of Maharashtra reported in (2005) 6 SCC 537.
58. Section 2 of the said Act provides that it applies to unaided private professional educational institutions affiliated to State Funded Universities, Councils, Boards or other bodies established under Law, excluding minority institutions.
9. The expression "Fee" has been defined under Section 3(f) as "all fees including tuition fee and development charges".
10. Section 5(1) of the said Act lays down the factors which shall be taken into consideration by the admission and Fee Regulatory Committee (constituted under Section 4(1) of the Act), while determining the fee structure.
11. Sub Section (2) of Section 5 prohibits charging any fee, by whatever name or form called, from the candidate over and above the fee determined by the Committee.
12. Admittedly, Himalaya Ayurvedic Medical College & Hospital is not a minority institution, therefore, the aforesaid Act is applicable to the said college. It is nobody's case that the fee structure has been revised pursuant to recommendation of the Fee Regulatory Committee constituted under the said Act. Thus it can be safely inferred that the said Committee has not made any determination as contemplated under Section 5(1) of the Act.
13. Since the field is occupied by a legislation, therefore, the State Government or the affiliating University cannot unilaterally enhance the fee, in the absence of any recommendation by the Committee constituted under the said legislation. Thus, the decision taken by the State 6 Government to revise the fee from `80,000 per year to `2,15,000/- per year is violative of provisions of the aforesaid Act and also the law laid down by Hon'ble Supreme Court in the case of T.M.A. Pai Foundation & others reported in (2003) 6 SCC 790 and Islamic Academy of Education & another Vs State of Karnataka & others reported in (2003) 6 SCC 697 and P.A. Inamdar Vs State of Maharashtra reported in (2005) 6 SCC 537.
14. We, therefore, concur with the view taken by learned Single Judge. There is no force in these special appeals and the same are accordingly dismissed.
(Manoj K. Tiwari, J.) (Rajiv Sharma, ACJ) 09.10.2018 Aswal