Kerala High Court
Dr.Javed Ahamed T.P vs Academy Of Medical Sciences
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 22ND DAY OF SEPTEMBER 2014/31ST BHADRA, 1936
WP(C).No. 20223 of 2012 (C)
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PETITIONER(S):
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1. DR.JAVED AHAMED T.P.,AGED 30 YEARS
M.D.GENERAL MEDICINE, ACADEMY OF MEDICAL SCIENCES
PARIYARAM, KANNUR-670503.
2. DR.NIJITH GOVIND,
M.S.ORTHOPEDICS, ACADEMY OF MEDICAL SCIENCES
PARIYARAM, KANNUR-670503.
3. DR.JYOTHI DAMODAR,
M.D.PHYSIOLOGY, ACADEMY OF MEDICAL SCIENCES, PARIYARAM
KANNUR-670503.
4. DR.LIPSY PAUL,
M.D.COMMUNITY MEDICINE, ACADEMY OF MEDICAL SCIENCES
PARIYARAM, KANNUR-670503.
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENT(S):
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1. ACADEMY OF MEDICAL SCIENCES,
PARIYARAM, KANNUR-670503
REPRESENTED BY THE PRINCIPAL.
2. THE CHAIRMAN,
ACADEMY OF MEDICAL EDUCATION, PARIYARAM
KANNUR-670503.
ADDL.RESPONDENTS:
3.TEH FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES,
OLD HIGH COURT BUILDING, RAM MOHAN PALACE,
COCHIN-31 REP. BY THE MANAGER.
4.STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.
ADDL.RESPONDENTS 3 AND 4 ARE IMPLEADED VIDE ORDER DATED
3.10.2012 IN I.A.NO.12831/12.
R1 BY ADV.SRI.P.V.SURENDRANATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-09-2014 ALONG WITH WPC.4211/2013, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).NO.20223/2012
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE ORDER NO.FRC 330/11 DATED 18.6.2011 PASSED BY THE
FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES.
EXT.P2: COPY OF THE ORDER NO.FRC 330/11 DATED 16.3.2012 PASSED BY THE
FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES.
EXT.P3: COPY OF THE COMMUNICATION NO.PRN/3709/ACME DATED 30.3.2011
GIVEN TO THE 1ST PETITIONER.
EXT.P4: COPY OF THE RECEIPT DATED 31.3.2011 FOR RS.1,00,000/- GIVEN TO THE
1ST PETITIONER.
EXT.P5: COPY OF THE RECEIPT DATED 11.4.2011 FOR RS.14,50,000/- GIVEN TO
THE 1ST PETITIONER.
EXT.P6: COPY OF THE RECEIPT DATED 19.4.2011 FOR RS.12,50,000/- GIVEN TO
THE 1ST PETITIONER.
EXT.P7: COPY OF THE RECEIPT DATED 31.3.2011 FOR RS.1,00,000/- GIVEN TO THE
2ND PETITIONER.
EXT.P8: COPY OF THE RECEIPT DATED 9.4.2011 FOR RS.34,00,000/- GIVEN BY THE
KANNUR DISTRICT CO-OPERATIVE BANK LTD. FOR THE CREDIT OF
PRINCIPAL, ACADEMY OF MEDICAL EDUCATION, PARIYARAM.
EXT.P9: COPY OF THE RECEIPT DATED 3.5.2011 FOR RS.1,42,000/- GIVEN TO THE
2ND PETITIONER.
EXT.P10: COPY OF THE CERTIFICATE NO.B2/2453/09/ACME DATED 27.4.2011
ISSUED BY THE 1ST RESPONDENT.
EXT.P11: COPY OF THE RECEIPT DATED 31.3.2011 FOR RS.1,00,000/- GIVEN TO
THE 3RD PETITIONER.
EXT.P12: COPY OF THE RECEIPT DATED 11.4.2011 FOR RS.4,00,000/- GIVEN TO
THE 3RD PETITIONER.
EXT.P13: COPY OF THE RECEIPT DATED 11.4.2011 FOR RS.6,42,000/- GIVEN TO
THE 3RD PETITIONER.
EXT.P14: COPY OF THE ADMIT CARD NO.B2/2453/10/ACME DATED 25.4.2011
ISSUED TO THE PETITIONER.
EXT.P15: COPY OF THE JOINING REPORT FOR POST GRADUATE COURSE IN
COMMUNITY MEDICINE DEPARTMENT DATED 25.4.2011 ISSUED TO THE 4TH
PETITIONER.
W.P.(C).NO.20223/2012
EXT.P16: COPY OF THE NOTICE DATED 14.8.2012 GIVEN TO THE 1ST
PETITIONER BY THE 1ST RESPONDENT.
EXT.P17: COPY OF THE NOTICE DATED 14.8.2012 GIVEN TO THE 2ND
PETITIONER BY THE 1ST RESPONDENT.
EXT.P18: COPY OF THE NOTICE DATED 14.8.2012 GIVEN TO THE 3RD
PETITIONER BY THE 1ST RESPONDENT.
EXT.P19: COPY OF THE NOTICE DATED 14.8.2012 GIVEN TO THE 4TH
PETITIONER BY THE 1ST RESPONDENT.
EXT.P20: COPY OF THE REPRESENTATION DATED 3.1.2012 GIVEN TO THE
PRINCIPAL BY THE PETITIONERS.
EXT.P21: COPY OF THE NOTICE NO.B2/132/13/ACME DATED 24.6.2013 GIVEN TO
THE 1ST PETITIONER.
EXT.P22: COPY OF THE NOTICE NO.B2/132/13/ACME DATED 24.6.2013 GIVEN TO
THE 2ND PETITIONER.
EXT.P23: COPY OF THE NOTICE NO.B2/132/13/ACME DATED 24.6.2013 GIVEN TO
THE 3RD PETITIONER.
EXT.P24: COPY OF THE NOTICE NO.B2/132/13/ACME DATED 24.6.2013 GIVEN TO
THE 4TH PETITIONER.
EXT.P25: COPY OF THE INTERIM ORDER IN WPC.NO.20223/2012 DATED 22.8.2012.
EXT.P26: COPY OF THE INTERIM ORDER IN WPC.NO.20223/2012 DATED 11.7.2013.
EXT.P27: COPY OF THE NOTICE NO.1296/13/ACME DATED 16.4.2014 ISSUED TO
THE 1ST PETITIONER.
EXT.P28: COPY OF THE NOTICE NO.1296/13/ACME DATED 16.4.2014 ISSUED TO
THE 2ND PETITIONER.
EXT.P29: COPY OF THE NOTICE NO.1296/13/ACME DATED 16.4.2014 ISSUED TO
THE 3RD PETITIONER.
EXT.P30: COPY OF THE NOTICE NO.1296/13/ACME DATED 16.4.2014 ISSUED TO
THE 4TH PETITIONER.
RESPONDENTS EXHIBITS:
EXT.R1(A): COPY OF THE COMMUNICATION ISSUED TO THE 1ST PETITIONER
NOTIFYING THE FEES STRUCTURE.
EXT.R1(B): COPY OF THE COMMUNICATION ISSUED TO THE 2ND PETITIONER
NOTIFYING THE FEES STRUCTURE.
W.P.(C).NO.20223/2012
EXT.R1(C): COPY OF THE COMMUNICATION ISSUED TO THE 3RD PETITIONER
NOTIFYING THE FEES STRUCTURE.
EXT.R1(D): COPY OF THE COMMUNICATION ISSUED TO THE 4TH PETITIONER
NOTIFYING THE FEES STRUCTURE.
EXT.R1(E): COPY OF THE DETAILED FEE STRUCTURE ISSUED TO THE 1ST
PETITIONER.
EXT.R1(F): COPY OF THE DETAILED FEE STRUCTURE ISSUED TO THE 2ND
PETITIONER.
EXT.R1(G): COPY OF THE DETAILED FEE STRUCTURE ISSUED TO THE 3RD
PETITIONER.
EXT.R1(H): COPY OF THE DETAILED FEE STRUCTURE ISSUED TO THE 4TH
PETITIONER.
//TRUE COPY//
P.S.TO JUDGE
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).NO.20223 OF 2012 (C)
&
W.P.(C).NO.4211 OF 2013 (B)
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Dated this the 22nd day of September, 2014
J U D G M E N T
As these two writ petitions involve a common issue, they are taken up together for consideration and disposal by this common judgment. For the sake of convenience, reference to the facts and exhibits are from W.P.(C).No.20223/2012.
2. The petitioners in both the writ petitions are Post Graduate students admitted to the 1st respondent College which is administered by the 2nd respondent Society. They had joined for various Post Graduate Courses in Medicine during the academic year 2011-12. While joining the courses in March-April 2011, no fee was fixed by the Fee Regulatory Committee in terms of Section 6(4) of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006, hereinafter referred to as the '2006 Act'. The petitioners W.P.(C).NO.20223/2012 & 2 W.P.(C).NO.4211/2013 had therefore joined the College pursuant to the instructions received from the 1st and 2nd respondents regarding the fee to be paid. In the case of the 1st petitioner, the said fee was an amount of Rs.28,00,000/- per annum, for the 2nd petitioner an amount of Rs.36,00,000/- per annum and for the 3rd and 4th petitioners, an amount of Rs.11,42,000/- each per annum. In addition to the said fees, there was also a demand for special fees that was applicable to the petitioners for each academic year. It is not in dispute that the petitioners had all effected payment of the said amounts for the year 2011-12 at the time of joining the 1st respondent College.
3. The case of the petitioners in both the writ petitions is that by Ext.P1 order dated 18.6.2011, the Statutory Committee constituted under the 2006 Act for the purposes of regulating the fee that could be collected by the Self Financing Colleges carrying on professional courses in Medicine in the State had provisionally fixed the fee that could be collected at Rs.2 lakhs for various Non-Clinical courses and Rs.5 lakhs for Clinical courses in various disciplines. It is pointed out that the said fee structure was subsequently finalised by an order W.P.(C).NO.20223/2012 & 3 W.P.(C).NO.4211/2013 dated 11.1.2012. Thereafter by Ext.P2 order dated 16.3.2012, revised fees were fixed for the academic year 2012-13. In the said order, however, it was made clear that for students admitted in 2011-12, the fee structure already fixed pursuant to Ext.P1 order would apply till the end of the course, for which they had joined in 2011-12. Thereafter by Exts.P16 to P19 notices dated 14.8.2012, the petitioners were asked to pay differential amounts for the academic year 2012-
13. It was made clear in the said notices that if they did not pay the differential amounts, they would be expelled from the College for non- payment of the dues. The petitioners also have a case that they were not paid the necessary stipends from July, 2012 onwards. It was aggrieved by the said actions of the respondents that the petitioners preferred these writ petitions seeking to quash Exts.P16 to P19 demand notices and for a declaration that the tuition fees payable by the petitioners for the courses to which they had joined in the academic year 2011-12 would only be as stipulated in Ext.P1 order passed by the Committee in terms of the provisions of the 2006 Act.
4. It is relevant to note that during the pendency of the writ W.P.(C).NO.20223/2012 & 4 W.P.(C).NO.4211/2013 petitions, interim orders dated 22.8.2012 and 11.6.2013 were passed by this Court when the petitioners were faced with a demand for differential fees for the academic years 2012-13 and 2013-14 respectively. On the strength of the interim directions issued by this Court, the petitioners were able to continue the course by paying the fees stipulated in the said orders for the respective years.
5. A counter affidavit has been filed on behalf of the 1st and 2nd respondents, wherein, it is contended that insofar as at the time of admission of the petitioners to the College for the courses that commenced in the academic year 2011-12, there was no fee structure that was fixed by the Statutory Committee under the 2006 Act, a unilateral fixation of the fee, subsequently, by the said Committee could not affect the admissions already effected by the 1st and 2nd respondents for the academic year in question. Reliance is placed on the decision of the Supreme Court in Kochi University of Science and Technology v. Thomas P. John [2008 (2) KLT 718 (SC)] for the proposition that a subsequent reduction of fees in respect of certain Colleges cannot be a criteria for students to claim a W.P.(C).NO.20223/2012 & 5 W.P.(C).NO.4211/2013 corresponding abatement in the fees paid to the College to which they were admitted. It is also pointed out that, at any rate, Ext.P1 order of the Regulatory Committee was stayed by this Court in W.P.(C). No.9515/2012.
6. I have heard Sri.George Poonthottam as also Sri.Paul Kuriakose, learned counsel appearing for the petitioners in both the writ petitions and Sri.P.V.Surendranath, learned counsel appearing for the respondents in both the writ petitions.
7. In these writ petitions, the issue to be considered is whether the fixation of the fee, for the Post Graduate courses commenced during the academic year 2011-12, by the Statutory Committee under Section 6 of the 2006 Act, would govern the collection of fee from students admitted to the Post Graduate courses under the various Self Financing Professional Colleges in the State for the academic year 2011-12. It must be noted, at the outset, that Ext.P1 order of the Statutory Committee is not impugned by the respondents in separate proceedings or even collaterally in these proceedings. I must W.P.(C).NO.20223/2012 & 6 W.P.(C).NO.4211/2013 therefore proceed on the basis that Ext.P1 order, if found applicable to the respondents for the academic year 2011-12, would be valid and binding on the respondents being one that is passed by a statutory authority in exercise of its powers under the 2006 Act. No doubt, counsel for the respondents would vehemently contend that it is open to the respondents to ignore Ext.P1 order inasmuch as it is one that is passed without considering relevant material, which is expected to be considered as per the provisions of the Statute, before passing an order. Attractive though the contention may appear at first blush, I am afraid, I cannot accept the same. The plethora of decisions of the Supreme Court which mandate that even a void order would be valid till set aside by a court of competent jurisdiction, are based on the sound policy that it would not be prudent to permit administrative authorities/quasi judicial authorities to disregard orders that have been validly passed by statutory authorities, exercising powers within their jurisdiction, based solely on their own views as regards the legality of the orders. Notable among the decisions of the Supreme court are those reported in State of Kerala v. M.K.Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Others [AIR W.P.(C).NO.20223/2012 & 7 W.P.(C).NO.4211/2013 1996 SC 906], Shiv Chander Kapoor v. Amar Bose [(1990) 1 SCC 234] and Jayendra Vishnu Thakur v. State of Maharashtra and Another [(2009) 7 SCC 104]. Inasmuch as Ext.P1 order has not been impugned in any proceedings, I am constrained to proceed on the basis that Ext.P1 is legal and valid.
8. Counsel for the respondents has a further contention that even assuming Ext.P1 order is valid, it can have only a prospective operation from the date on which it was passed, namely, 18.6.2011. The contention is that, insofar as by the date of Ext.P1, the admission of the petitioners had already been effected in the College by collection of the amounts fixed as tuition fees and special fees by that College, the fixation of fee by the Statutory Committee in terms of the 2006 Act, which came at a later point of time, cannot upset the collection of fees already effected by the respondent College. As a matter of fact, this argument of counsel for the respondents is an alternative one to the other contention raised namely, that of the applicability of the fee fixed by the Statutory committee vide Ext.P1 order to admissions already effected in the College for the academic W.P.(C).NO.20223/2012 & 8 W.P.(C).NO.4211/2013 year 2011-12. Both these contentions are premised on the theory that any fixation of fee that is done by the Statutory Committee after the commencement of the academic year, cannot be made applicable retrospectively with effect from the commencement of the academic year. The principles of estoppel and waiver have also been relied upon to fortify the contention that the petitioners cannot, after having accepted the fee prescribed by the respondent College, and joined the course after paying the same, take a contrary stand with regard to the quantum of fee payable to the respondent College. I do not find force in these contentions of the respondents. When viewed in the context of the object sought to be attained by the 2006 Act, through the prescription of a Statutory Committee to monitor the fees charged by various Self Financing Professional Colleges in the State, it must be appreciated that the Committee itself was one that was contemplated under the 2006 Act to ensure that the fees charged by Self Financing Professional Colleges were not excessive in the sense of being exploitative in nature. The said provisions under the 2006 Act were enacted for the purposes of complying with the judgments of the Supreme Court in the cases of TMA Pai v. State of Karnataka W.P.(C).NO.20223/2012 & 9 W.P.(C).NO.4211/2013 [(2002) 8 SCC 481], Islamic Academy v. State of Karnataka [(2003) 6 SCC 697] and P.A.Inamdar v. State of Maharashtra [(2005) 6 SCC 527]. The crux of the decisions in those cases is that a Self Financing Professional institution is entitled to have its own fee structure subject to the condition that there can be no profiteering and, further, capitation fee cannot be charged. While a provision for reasonable surplus was permitted, it was mandated that relevant factors that should be taken into consideration for the fee structure would be infrastructure and facilities available, investments made, salaries paid to the teachers and staff and future plans for expansion and betterment of the institution. While the right to fix fee by the institutions was recognised as an integral part of the fundamental right under Article 19 (1)(g) of the Constitution available to the said institutions, it was also found that the fundamental right in question was not an absolute one and that it was open to the State to provide for reasonable restrictions to ensure that the fee charged was not one that was exploitative in nature or in the nature of a capitation fee or one that resulted in a profiteering. It was as part of the reasonable restrictions that could be placed on the rights of the institutions in W.P.(C).NO.20223/2012 & 10 W.P.(C).NO.4211/2013 question under Article 19 (1) (g) that by way of Legislation, the 2006 Act was enacted. When the objective of the fixation of fee by a Committee under the said Act is to safeguard students against the arbitrary fixation of a fee by a Self Financing Professional institution and with a view to ensure that the fees charged by them are not exploitative in nature, then, in my view, the fixation as and when done by the Statutory Committee will necessarily have to be applicable to the Institutions in question for the academic year for which the fixation was done. In the instant case, Ext.P1 as finalised by the order dated 11.1.2012 expressly states that it would apply to all the Colleges in the State and hence, would necessarily govern the collection of fees from students admitted to the 1st respondent College for the various Post Graduate Medical courses for the academic year 2011-12.
9. Resultantly, I would hold that the petitioners in both the writ petitions are liable to pay only the fee fixed by the additional 3rd respondent in terms of the 2006 Act, as evidenced by Ext.P1 order that was finalised by the order dated 11.1.2012, for the academic W.P.(C).NO.20223/2012 & 11 W.P.(C).NO.4211/2013 years 2011-12 to 2013-14. The fee payable by the petitioners in both these writ petitions shall be computed on the said basis and, after taking into account the payments already made at the time of joining the course as also during the pendency of the writ petitions before this court, if any amounts remain to be paid to the petitioners, the same shall be refunded to them forthwith and at any rate within a period of two months from the date of receipt of a copy of this judgment.
The writ petitions are allowed as above.
A.K.JAYASANKARAN NAMBIAR JUDGE prp