Gujarat High Court
Society Of Higher Education ... vs Gujarat University & 3 on 23 June, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/13001/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13001 of 2016
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SOCIETY OF HIGHER EDUCATION INSTITUTIONS
AHMEDABAD....Petitioner(s)
Versus
GUJARAT University & 3....Respondent(s)
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Appearance:
MR DC DAVE, SENIOR COUNSEL WITH MR UDAYAN P VYAS, ADVOCATE
for the Petitioner(s) No. 1
MR YATIN SONI, ADVOCATE for the Respondent(s) No. 3 - 4
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS SK VISHEN,
ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 23/06/2017
ORAL ORDER
1. Heard learned Senior Counsel Mr. D. C. Dave with learned advocate Mr. Udayan P. Vyas for the petitioner, whereas learned Advocate General Mr. Kamal Trivedi with learned advocate Mr. S. K. Vishen for respondent Nos. 1 and 2 and learned advocate Mr. Yatin Soni for respondent Nos. 3 and 4. Perused the record.
2. Petitioner is a society registered under the law as a trust for carrying out educational activities. Respondent No.1 is a University whereas respondent No. 2 is its Vice Chancellor and respondent Nos. 3 and 4 are students amongst on respondent No.4 has Page 1 of 16 HC-NIC Page 1 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER disclosed that he is secretary of student organization namely Ahmedabad Branch of Akhil Bhartiya Vidhyarthi Parishad.
3. Petitioners herein, being the society of higher educational institutes has prayed for writ of mandamus or writ in the nature of mandamus or any other writ, order or directions, so as to declare action of the respondent Nos. 1 and 2 University in discarding the report dated 24.05.2016 submitted by the Fee Review Committee for enhancing the fees for the courses of B.Com, BBA and BCA as arbitrary, unreasonable, unjust and void being violative of Article 14 and 19(1)(g) of the Constitution of India and to quash and set aside the report dated 19.06.2016 of the another Review Committee. Petitioner has also prayed to implement the report dated 24.05.2016 by such Fee Regulatory Committee headed by Justice J. M. Panchal, Former Judge of the Honourable Supreme Court of India and, thereby, permitting to increase fee to be charged by unaided private educational institutions imparting non professional educational courses like B.Com, BBA and BCA from the academic year 2016 - 2017. As interim relief petitioners have also prayed for the direction to respondent Nos. 1 and 2 University to permit the increase in fee to be charged, as such.
4. Before entering into any further facts or details, it would be appropriate to verify that what is the fees before such recommendations of committee for the colleges, which are Page 2 of 16 HC-NIC Page 2 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER members of the petitioner society and other colleges which are affiliated with other universities for the similar courses. Petitioners have already produced a comparative chart at page 107 of the petition which is reproduced herein under :
COMPARISION OF PRESENT FEE STRUCTURE Saurasht Hemcha Sardar Maharaja Veer Average Gujarat ra ndracha Patel Krishnak Narmad Fees Universi Universi rya Universi umar South (5 State ty ty North ty Sinhiji Gujarat Universi Gujarat Bhavnag Universi ties) Universi ar ty ty Universit y Commer 15000 12000 15000 9150 11000 12430 7000 ce B.B.A. 44000 20000 30000 13450 19800 25450 14000 B.C.A 44000 18000 30000 32150 22000 29230 18000 GLS Ahmeda Kadi Auro Average Gujarat Universi bad Sarva Universit (Fees of Universt ty Universi Vishwavi y 4 iy ty dyalaya Private Universi ties) Commer 22000 40000 Not 31000 7000 ce offered B.B.A. 31000 74000 15000 125000 61250 14000 B.C.A. 35000 87000 20000 55000 49250 18000
5. Therefore, it is very much clear from such comparative chart that for similarly situated courses approved by other universities that range of the fees is between the range of Rs.9150/- to Rs.1,25,000/-. If we scrutinize the table minutely, it becomes clear that for the course of B. Com, minimum fee is Rs.9150/- is approved by the Bhavnagar University, whereas maximum fees of Rs.40,000/- Page 3 of 16 HC-NIC Page 3 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER is approved by the Ahmedabad University. As against that for the course of B. Com, Gujarat University has approved Rs.7000/-. 5.1 Similarly, for the course of BBA, minimum fees of Rs.13450/- is approved by Bhavnagar University, whereas maximum fees of Rs.1,25,000/- is approved by the AURO University. As against that, for the course of BBA, Gujarat University has approved Rs.14000/- as fees.
5.2 Similarly, for the course of BCA, minimum fees of Rs.20,000/- is approved by Kadi Sarva Vishwa Vidhyalaya and maximum fees of Rs.25,000/- is approved by the AURO University. As against that, for the course of BCA, Rs.18,000/- is approved by the Gujarat University.
6. Such comparative chart is part of the report of the Fee Regulatory Committee. The committee was constituted by as many as Eight eminent dignitaries of the respective field viz.
(1)Justice J. M. Panchal, Former Judge, the Supreme Court of India & Chairman, Fee Regulatory Committee. (2)Dr. M. N. Patel, Vice - Chancellor, Gujarat University & Member, Fee Regulatory Committee.
(3)Dr. N. K. Jain, I/c. Registrar, Gujarat University & Member, Fee Regulatory Committee.
(4)Shri Maheshabhai Kaswal, Executive Council Member, Page 4 of 16 HC-NIC Page 4 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER Gujarat University & Member, Fee Regulatory Committee. (5)Dr. Digvijaydinh Gohil, Secretary, Self Financed Colleges Assocuation of Colleges affiliated Gujarat University & Member, Fee Regulatory Committee.
(6)Dr. Himanshu Pandya, Professor, Botany Department, Gujarat University & Member, Fee Regulatory Committee. (7)Dr. Kamaljit L. Lakhtaria, Professor, Computer Science Department, Gujarat University & Member, Fee Regulatory Committee.
(8)Shri Udaybhai Shah, Chartered Accountant & Member, Fee Regulatory Committee.
6.1 Therefore, it becomes clear that the committee is constituted by Academicians, Chartered Accountant, Representative of Colleges and University and headed by a retired Judge of the Honourable Supreme Court of India and having Registrar of the Gujarat University as one of the members to support the activities of the committee.
7. Therefore, when as back as in the month of February 2016 respondent Nos. 1 and 2 have thought it fit to review the fee structure of self financed institution for the courses under reference, prima facie it is clear that respondent Nos. 1 and 2 have realized the necessity of revision of fee structure. The committee has, in its report, made it clear that in addition to the Gujarat Page 5 of 16 HC-NIC Page 5 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER Professional Technical Educational Colleges and Institutions (Regulation of admission and fixation of fees) Act, 2007 so also the Gujarat Professional Educational Colleges and Institutions (Regulation of admission and fixation of Fees) Act 2007, it would bear in mind the decision of the Honourable Supreme Court of India in case of P. A. Inamdar vs. State of Maharashtra reported in AIR 2005 SCW 3923. The committee has reproduced the broad principles of above referred Statute and Judgment in its report in para 3 under the heading of objectives on page 97 to 99, which is self explanatory and, therefore, not reproduced to avoid bulkiness of this order. The committee has, thereafter, noted the broad process undertaken by it in as many as 15 paragraphs running into 5 pages before coming to the conclusion that;
"the committee has considered the details of infrastructure, staff etc. and cost structure submitted by institutions based on the audited financial statements for academic years of 2016-17, 2017-18 and 2018-19 as adjusted on account of specific treatment of certain items of cost of education as mentioned in sub points (a) to (j) of Point no.10, that were excessive, not relevant to the cost of education etc."
7.1 Thereupon, the committee has called upon the information from different universities, which is on page 107 and reproduced herein above. Thereafter, the committee has considered the Page 6 of 16 HC-NIC Page 6 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER relevant information and factors in arriving at the conclusion that the fees of the B. Com shall be increased from Rs.7000/- to Rs.8500/- for the year 2016 - 2017, which shall be further increased to Rs.9000/- for the year 2017-2018 and Rs.9500/- for the academic year 2018-2079, for colleges which are situated outside Ahmedabad whereas colleges situated herein in Ahmedabad, fees is suggested as Rs.9500/- for the academic year 2016-2017, Rs.10,500/- for 2017-2018 and Rs. 11,500/- for the 2018-2019.
7.2 Similarly for the course of BBA Rs.18,000/- for the year 2016
- 2017, Rs.20,000/- for the year 2017 - 2018 and Rs.22,000/- for the year 2018 - 2019 for the colleges situated in Ahmedabad City and for rural areas Rs.16,000/- for the year 2016 - 2017, Rs.17,000/- for the year 2017 - 2018 and Rs.18,000/- for the year 2018 - 2019 . 7.3 Whereas, for the course of BCA the suggested fee is Rs.22,000/- for the year 2016 - 2017, Rs.24,000/- for the year 2017
- 2018 and Rs.26,000/- for the year 2018 - 2019.
8. However, at this stage, it would be appropriate to first consider the submissions by learned advocate Mr. Soni for respondent Nos. 3 and 4 who has contended that this petition is not maintainable for the reason that there is no breach of any fundamental right and that petitioner has no right to get the fees Page 7 of 16 HC-NIC Page 7 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER increased, so also University has no reason to constitute such committee and to increase the fees as per recommendations of the committee.
9. Therefore, prima facie it seems that when members of the committee whose details are disclosed herein above have scrutinized the legal position and all other aspect and when they have recommended marginal addition in the fee structure and then though University may have its discretion either to accept or to reject such recommendations by the review committee, the fact remains that if such recommendations are once approved, then for rejection there must be cogent and sufficient reasons with evidence to confirm that the recommendations of the committee are not required to be accepted and, thereby, to deviate from the previous decision. Therefore, there is difference between rejecting the recommendations on the threshold either on merits or on discretion but once such recommendations are accepted by the University, changing such decision of acceptance would certainly be subject to scrutiny by the competent authority that how and why there is altogether different and adverse decision than the previous decision and, thereby, to reject the recommendations in toto. Therefore, there is no substance in the submission by the respondent that since the review committee is not the statutory committee and since there is neither law nor rule to confirm that University is bound to accept the decision or suggestion of such Page 8 of 16 HC-NIC Page 8 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER review committee and, thereby, University has discretionary powers either to accept or to reject the suggestion of such committee. The decision of University which is impugned in this petition, which is subject to scrutiny because once University has accepted such suggestion allowing the rise in the fees of the colleges and, therefore, only because of representation of particular class of students if University has to change its stand and that too by assigning altogether different reasons regarding non availability of proper infrastructure without having any evidence to prove such allegation, there is no option but to scrutinize such decision to see that whether it is arbitrary or under coercion of particular facts and circumstances or group or not. Thereby if impugned decision of the University to discard the recommendations of committee of dignitaries and thereby to revise their own decision, then there is reason to scrutinize such decision to see that it is neither arbitrary nor under co-version or pressure or under some other influence, when petitioner is challenging its legality.
10. Whereas learned Senior Counsel Mr. Dave for the petitioner has relied upon the following decisions to confirm that in such matters practically students have no right to object the fee structure and, therefore, only because they are allowed to be implemented in this petition on their own request, it cannot be said that they have absolute right to object to such petition on any such Page 9 of 16 HC-NIC Page 9 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER ground.
10.1 For such submission learned Senior Counsel Mr. Dave is relying upon following decisions:
(1)Pushpagiri Medical Society vs. State of Kerala & Ors.
reported in (2004) 8 SCC 135, wherein full bench has, relied upon the decision in the case of T. M. A. Pai Foundation vs. State of Karnataka reported in (2002) 8 SCC 481 and held as under;
"10. For the present purpose, as interim measure, we are of the view that the students should provisionally pay the fee as fixed by Justice Thomas in the order dated 28-5-2004, which means that the students should neither pay the fee as claimed by the petitioner institution nor one postulated by Section 4 of the Act. This direction would be applicable for the present academic year 2004-05. The provisional payment at the aforesaid rate would be subject to further orders as may be passed by this Court.' Such decision was with reference to the question regarding fee structure. It is found from the judgment that in terms of decision in case of Islamic Academy of Education vs. State of Karnataka reported in (2003) 6 SCC 697, the government of Kerala had appointed a committee headed by Justice K. T. Thomas which has fixed the fees to be collected from each student of private self finance medical college. The Honourable Supreme Court has also observed that the question as to whether or not the students can afford or not, the fee fixed by Justice Thomas Committee is not very Page 10 of 16 HC-NIC Page 10 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER relevant and in that case government may subside such student as it may deem fit just and proper. It was the case by unaided medical college that had been restrained from charging fees from its students.
(2) Modern Dental College & Research Centre & Ors vs. State of Madhya Pradesh & Ors. reported in (2010) 14 SCC 186, wherein also the Honourable Supreme Court has relied upon the case of TMA Pai (supra) and observed as well as held in following terms;
"21. In these writ petitions, this court on 10.8.2004 issued an interim direction that the fees prescribed by the Committee shall prevail for the time being though provisional and it would be open to the Colleges to take an undertaking from the students that in case higher fee is payable, they will pay the same.
24. Therefore, it follows that as far as 2003-04 is concerned there is no legally valid or binding fee fixation. The fixation of fee involves examination of various accounting aspects with reference to principles/guidelines given in Islamic Academy and Inamdar (supra). It can be done only by a Fee Fixation Committee by giving due opportunity to the concerned colleges and after hearing the State Government. Such a determination of fee becomes necessary in regard to the year 2003-04. In the circumstances, the Government order dated 10.12.2004 fixing the fee for 2003-04 has to be considered only as an interim arrangement pending final determination by the Fee Fixation Committee.
32. We, accordingly, allow these writ petitions in part as follows:
(a) It is declared that the fixation of fees so far done, either by the Fee Fixation Committee/State Government for the year 2003-04 and 2004-05 was only as an interim provisional measure, subject to final determination that is yet to be done.Page 11 of 16
HC-NIC Page 11 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) 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."
(3)D. A. V. College Managing Committee vs. Laxminarayan Mishra & Ors. reported in (2014) 14 SCC 69, wherein the Honourable Supreme Court has observed and held as under;
"Objections, if any, should be entertained only from the parents' representatives and not from individual parents. An individual may at times be reckless and may harm the educational prospects of all the students of the school. If a claim for revision of fees is stalled for long due to merit-less objections, it can affect academic standards on account of disgruntled staff and teachers who may even quit the institution for want of appropriate salary and perks. Such state of affairs with regard to the concerned schools has been highlighted on behalf of the appellant. The selected parents' representatives, on the other hand, are expected to be more responsible as a body. In the present case, only some individual parents have prevented the schools from realising revised fees since 2009. It is not possible to assess the injury caused to the schools nor is it possible to award any compensation by allowing revised fees to be realised from any earlier date such as 1.6.2012 as prayed on behalf of the appellant. However, it is satisfying to note that the State of Odisha has not raised any objection to the recommendations of the Fee Structure Committee, Odisha and, therefore, there is no legal impediment of any substance in allowing this appeal."
(4)Order dated 23.03.2010 in Civil Application NO. 6811 of 2009 in Special Civil Application NO.3289 of 2009, the division bench of this Court has held that;
Page 12 of 16 HC-NIC Page 12 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER "Request of the students for being joined as party to the petition cannot be accepted. Counsel for the applicants submitted that the students may heard by the Fee Committee before taking a final decision. We find that there is o such procedure under the stature and we are of the opinion that students' participation in such proceedings cannot be granted as matter of right. The application is disposed of accordingly"
10.2 Therefore, above discussion makes it clear that petition is maintainable and that though respondent Nos. 3 and 4 are permitted to be joined as such, it cannot be said that only because of their objections Court is not empowered to pass appropriate order.
11. In view of above facts and circumstances, at present we are concerned with admission of the matter with interim relief, if any, permissible as per law and, therefore, when matter is yet to be decided finally on merits and after considering rival submissions, it would be appropriate not to discuss all minute details and to determine it on either side, so as to prejudice any litigant. However, it cannot be ignored that recommendations of the committee constituted by the respondent - University has been once accepted by the University but thereafter on objections by the respondent No.4, University has constituted once another committee of its officers only which has decided that pursuant to objections taken by the respondent Nos. 3 and 4 other students if there is lack of requisite fees in the colleges, then recommendations of committee is not to be accepted and thereby Page 13 of 16 HC-NIC Page 13 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER not to be increased. Therefore, respondent No.2 has diluted the authority of the committee constituted and head by the retired Judge of the Honourable Supreme Court including academicians, chartered accountant and officers of the University itself and, therefore, if they wanted to decide against decision of the committee then they should have referred the objections received by them to such committee for further opinion or they should have verified the allegations submitted before them regarding short coming in facility and other infrastructure by some of the colleges.
12. For the purpose, this Court has by an order dated 24.04.2017 called upon the University to verify that whether colleges affiliated with the University is offering requisite facilities or not. Pursuant to such directions, University has constituted the committee of two members as suggested by Vice - Chancellor and pursuant to local inspection by such committee the University has placed report dated 04.05.2017 on record, which confirms that in most of the colleges there is no issue regarding short fall of basic infrastructure and other facility. This report proves that second committee of the officers which has decided not to implement the recommendation of the Fee Regulatory Committee has merely acted upon submissions before it without considering its factual details. It cannot be ignored that report of such committee constituted of five persons, at least one of the member namely Mr. Dhaval Patel in terms of such report dated 29.06.2016 has stated Page 14 of 16 HC-NIC Page 14 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER that he does not agree with such report to refuse to implementation of fee review committee does such report is in the form of opinion dated 29.07.2016 categorically confirms that they have simply considered the memorandum of allegations by different students union, students, Gujarat University Teachers Association (self financed) so also written representations of four members of Senate of University. However, it is disclosed in report dated 04.05.2017 that all the facilities are properly available in all colleges. Another ground of irregularity as alleged by the students in the colleges like absence of faculty member and payment of less salary to the faculty member. However, there is no basis for such allegation. Respondent Nos. 2 to 4 and other similarly situated persons are only interested to see that there is no revision of fees at any cost. The answer to such situation is very much found in the judgment of Laksham (supra) by the Honourable Supreme Court.
13. Learned advocate Mr. Soni has submitted that University is independent body and its administration is controlled by the Board of Senators and fee review committee was constituted by the University itself. It is also undisputed fact that second committee is not having dignitaries like previous committee and report of first committee has never been looked into.
14. In view of above facts and circumstances, matter requires full consideration and to be decided after extending reasonable Page 15 of 16 HC-NIC Page 15 of 16 Created On Mon Aug 14 09:51:11 IST 2017 C/SCA/13001/2016 ORDER opportunity to all concerned. Therefore, Rule returnable on 11.09.2017. Learned advocate Ms. S. K. Vishen wavies service of notice of rule on behalf of respondent Nos. 1 and 2. Learned advocate Mr. Yatin Soni waives service of notice on behalf of respondent No.3.
15. In view of same facts and circumstances, let there be an interim relief in terms of para 20(C) but with condition that colleges affiliated with respondent No.1 University which claims revision fees as per the recommendations dated 24.05.2016 by Fee Regulatory Committee shall disclose collection of total amount of fees by them to the University and in case of pendency of this petition on record of this petition and shall file a bank guarantee of amount of difference between original fee and revised fee with undertaking that if they failed in this petition, then such additional fee shall be refunded to the concerned students. For the purpose, if required, University may recover such amount from the bank guarantee filed by the petitioner as aforesaid.
Direct Service is permitted.
(S.G. SHAH, J.) drashti Page 16 of 16 HC-NIC Page 16 of 16 Created On Mon Aug 14 09:51:11 IST 2017