Himachal Pradesh High Court
Maharishi Markandeshwar University & ... vs H.P. Private Education Institutions ... on 24 May, 2023
Bench: Jyotsna Rewal Dua, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 4878 of 2022 Decided on: 24th May, 2023 _________________________________________________________________ .
Maharishi Markandeshwar University & Anr. .... Petitioner Versus H.P. Private Education Institutions Regulatory Commission & Ors. ...Respondents _________________________________________________________________ Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge Hon'ble Mr. Justice Satyen Vaidya, Judge 1 Whether approved for reporting?
_________________________________________________________________ For the petitioners: Mr. K.D. Shreedhar, Senior Advocate with Ms. Sneh Bhimta, Advocate.
For the respondents: Mr. Naresh Kaul, Advocate, for respondents No.1 and 2.
Mr. Vikrant Thakur, Advocate, for respondent No.3.
Mr. Y.P.S.Dhaulta, Additional
Advocate General, for respondent
No.4.
Mr. Rajiv Rai, Advocate, for
respondents No.5 and 6.
Jyotsna Rewal Dua, Judge
Two orders were passed on 09.06.2022 by
1
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/05/2023 20:30:41 :::CIS -2-respondent No.1 the H.P. Private Educational Institutions Regulatory Commission (Commission in short). By one order, the application preferred by the petitioners for suspending .
the proceedings in the complaints filed by respondents No.5 and 6, was rejected & by the other order, the complaints preferred by respondents No.5 and 6 were allowed and several directions were issued to the petitioners. In these circumstances, the petitioners are before this Court.
2. The projected facts of the case are :-
2(i) Respondents No.5 and 6 were enrolled in the MBBS Course that commenced from academic session 2013- 14 in the petitioner college. They graduated from the said Course in March 2020 and December 2019, respectively. On 06.02.2021, these respondents filed their respective complaints before the Commission under Sections 9 and 10 of the Himachal Pradesh Private Educational Institutions (Regulatory Commission) Act, 2010 (the HPPERC Act in short). The crux of the grievances of both the complainants (respondents No.5 and 6) was that since MBBS Course duration as per the prospectus was 4.5 years, therefore, they could not have been charged tuition fee, University charges and hostel fee etc. beyond the period of 4.5 years.::: Downloaded on - 29/05/2023 20:30:41 :::CIS -3-
2(ii) The petitioners contested the above complaints.
Preliminary objections such as maintainability of the complaint for want of jurisdiction of the Commission on the .
ground that matter of proposal of fee was within the domain of the petitioners under the Maharishi Markandeshwar University Act, 2010; the matter of approval of fee being in the domain of fee fixation committee and the State Government under the H.P. Private Medical Educational Institutions (Regulation of Admission & Fixation of Fee) Act, 2010 etc., were taken. The petitioners submitted that the collection of tuition fee, examination fee, institutional development charges, hostel chares etc. were deemed to be approved by the Commission since 1% cess assessed by the Commission as per Section 8(a) of the HPPERC Act on the total fee had already been accepted by the Commission without any objection.
2(iii) The matter was being heard by a Bench of respondent No.1-Commisison consisting of respondent No.2- Chairman of the Commission and respondent No.3 Member of the Commission.
2(iv) On 08.06.2022, the petitioners moved an application for suspending the proceedings in the complaints ::: Downloaded on - 29/05/2023 20:30:41 :::CIS -4- instituted by respondents No.5 and 6. This was on the stated ground that respondent No.3, a Member of the Bench, was interested in the issue involved in the complaints as his real .
daughter was similarly placed as the complainants. The petitioners pleaded that respondent No.3 would be interested in favourbale outcome of the complaints as that would benefit his daughter and in turn respondent No.3 himself.
On 09.06.2022, the application moved by the petitioners was rejected as "without any provision of law and merits". This order of rejection was signed only by respondent No.2. The other bench Member-respondent No.3 refused to sign it. This order was followed by another order of even date whereby the complaints preferred by respondents No.5 and 6 were allowed and following directions were issued: -
"In view of the above, the Commission hereby issue the following directions: -
As per record submitted before the Commission, it is proved that the respondent No.1 and 2 have charged excess amount of Rs.6,05,500/- from Dr. Nividita and Rs.8,95,500/- from Dr.Yamini which amount to rs.15,01,000/- in total, in the name o of tuition fee, hostel fee, University charges and development charges (Dr. Yamini) and (hostel charges Four and half years). As per section 11 of H.P. Private Educational Institutions (Regulatory Commission) Act, 2010 and Rule 6(b) of the Commission, the ::: Downloaded on - 29/05/2023 20:30:41 :::CIS -5- Commission hereby impose penalty of Rs.45.00 lakhs on Respondent No.1 and 2 for charging excess fee from the complainants and penalty amount shall be deposited within three months in the bank account of .
HPPERC from issuance of this order.
Further, it was observed from the documents on record that the respondent No.1 and 2 has also charged excess amount of fee from the other MBBS students as well, which is approximately amount to Rs.1,03,96,53,000/-. In this regard students may approach the college for the refunding of excess amount of fees taken from them. The respondents No.1 and 2 shall also refund the excess charged from the students of MBBS immediately. The above order shall come into force with immediate effect.
Matter stand adjudicated, the representation/ applications pending if any in this matter also stand disposed off.
Order be uploaded on website of the Commission.
File after completion be consigned to record room."
The second order was also not signed by respondent No.3.
2(v) Both the above orders passed on 09.06.2022 have been assailed by the petitioners in the instant petition.
3. Submissions 3(i) Learned Senior Counsel for the petitioners reiterated the averments made in the writ petition. Learned Senior Counsel emphasized that no one can be a judge of his ::: Downloaded on - 29/05/2023 20:30:41 :::CIS -6- own cause. Respondent No.3 would have been interested in favourble outcome of the complaints as his real daughter was student of batch 2014-19 of the MBBS Course in the .
petitioners' institute. Respondent No.3's daughter was similarly placed as the complainants. It was for this reason that the petitioners had moved the application on 08.06.2022, seeking suspension of the proceedings in the complaints. The application was required to be allowed in the admitted facts of the case. It was further submitted that the order passed on 09.06.2022, rejecting petitioners' application, was not even in consonance with the provisions of the HPPERC Act. The order at best can be said to have been passed by respondent No.2 in his capacity as Chairman.
The order was required to be passed by respondent No.1-the Commission. Respondent No.3, Member of the Commission had refused to sign the order. In terms of the provisions of HPPERC Act, the quorum of the Commission consists of Chairman and minimum one Member. The order dated 9.06.2022, dismissing petitioners' application seeking suspension of complaint proceedings was bad in eyes of law as it was not passed by a valid and duly constituted quorum of the Commission. For the same reason the subsequent ::: Downloaded on - 29/05/2023 20:30:41 :::CIS -7- order dated 09.06.2022, that was also passed by respondent No.2 is required to be set aside.
3(ii) Learned counsel of respondents No.1 and 2, .
reiterated the stand taken by these respondents in their reply. It was argued that the respondent No.3 was part of the proceedings since 22.09.2021. Respondent No.3 was aware that his son-in-law was employed with the petitioners'-
University as Assistant Professor for the last one year. These facts were also in the knowledge of the petitioners. Despite this, no objection was raised by the petitioners at any time either before or during the arguments. It was only when the matter was fixed for pronouncement of the order for 09.06.2022, the petitioners moved the application for suspension of the proceedings. The intention behind moving such application was to linger on the matter and to avoid passing of order dated 09.06.2022.
Learned counsel for respondents No.1 and 2 also highlighted the averments made by these respondents in their reply that the impugned orders cannot be said to be illegal for want of quorum. Attention in this regard was invited to following Section 2(b) of the HPPERC the Act:-
::: Downloaded on - 29/05/2023 20:30:41 :::CIS -8-"Member" means Member of the Commission and includes the Chairperson."
It was contended that in view of definition of .
"Member" given under the aforesaid provision, respondent No.2 in his capacity as Chairman could have solely and legally passed the order. The impugned orders, therefore, cannot be said to be suffering from any illegality.
3(iii) Respondents No.5 and 6 in their reply stated that during the course of entire proceedings, neither the petitioners nor respondent No.3 disclosed that daughter of the respondent No.3 had pursued MBBS degree from the petitioners' institute or that respondent No.3's son-in-law was employed as faculty member in the petitioners' institute.
According to these respondents, petitioners and respondent No.3 had played foul with the complainants as well as the Commission.
4. After hearing learned counsel for the parties and perusing the case record, our observations are: -
4(i) It is not in dispute that respondent No.3 was Member of the Bench of the Commission that was hearing the complaints preferred by respondents No.5 and 6.::: Downloaded on - 29/05/2023 20:30:41 :::CIS -9-
4(ii) It is not in dispute that daughter of respondent No.3 was enrolled as student of MBBS Course in the petitioners' institute in 2014-2019 batch.
.
4(iii) It is not in dispute that a favourable decision of the complaints preferred by respondents No.5 and 6 would have been advantageous to the daughter of respondent No.3 and as such respondent No.3 would have been benefitted by favourable decision of the complaints. It is also not in dispute that rson-in-law of respondent No.3 was also employed in the petitioners' institute.
4(iv) It is well settled that justice should not only be done but should also be seen to have been done. In the face of above admitted factual scenario, rejection of the application moved by the petitioners seeking suspension of proceedings in the complaints preferred by respondents No.5 and 6 merely on the observation that "same is found to be without any provision of law on merits", cannot be said to be in order. Alongwith the reply filed by respondents No.1 and 2, a note executed by respondent No.3, dated 09.06.2022, has been appended. In this note, respondent No.3 had practically admitted his interest in the matter and stated that he would not be in a position to participate in the ::: Downloaded on - 29/05/2023 20:30:41 :::CIS
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pronouncement of orders on 09.06.2022. It would be appropriate to extract the contents of the note hereinafter: -
"This is to bring your kind notice that my daughter .
Dr. Sakshi Sharma was the ex. student of Maharishi Marakandeshwar University, Kumarhatti, Distt. Solan (H.P.) from the batch 2014- to 2019 of MBBS Course and my son-in-law had also worked with the said University as an Assistant Professor for the last one year.
Due to above mentioned reasons, I am not in a position to participate in pronouncement of orders on dated 09.06.2022 and not able to place any signature on final orders of case No.02 of 2021 titled Dr. Nividita Rao and Others Versus Maharishi Marakandeshwar University, Kumarhatti, Distt. Solan.
(Dr. Shashi Kant Sharma) Member (H.P. Private Educational Institutions Regulatory Commission, Shimla-9."
The order dated 09.06.2022, dismissing petitioners' application was thus not in consonance with the settled legal convention.
4(iv) Coming to the other aspect of the case, the impugned orders both dated 09.06.2022 even otherwise cannot be held to be passed in accordance with law. The orders have been signed only by respondent No.2. The other member of the bench-respondent No.3 did not sign the order.
In this regard, it will be appropriate to refer to Section 4 of ::: Downloaded on - 29/05/2023 20:30:41 :::CIS
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the HPPERC Act which defines composition of Commission as under: -
"4. Composition of Commissioner-(1) The commission .
shall consist of a Chairperson and maximum of two members from amongst persons of eminence of public life or in the field of higher education or who have remained Secretary or above to the Government of Himachal Pradesh or held equivalent post in the Government of India for a period of three years or more."
It is, thus, obvious that the Commission is to comprise of Chairperson and maximum two Members. In the instant case, respondent No.3 was one of the two members of the Bench of the Commission, that was seized off the complaints preferred by respondents No.5 and 6. He had refused to sign the impugned orders. The orders were signed only by respondent No.2 as Chairman. The quorum of the constituted bench of the Commission was not complete. The orders were thus, non-est. Respondent No.2, though was the Chairman and as such also a Member of the Commission but not the Commission. The impugned orders therefore cannot be said to have been passed by the commission.
5. For the aforesaid reasons, there is merit in the present writ petition. Accordingly, we issue following directions: -
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5(i) The impugned orders dated 09.06.2022 (Annexures P-4 and P-5) are set aside.
5(ii) Respondent No.1 is directed to hear the .
complaints of respondents No.5 and 6 afresh in accordance with law.
5(iii) Taking note of the fact that the petitioners had raised the objection to the continuation of respondent No.3 as Member of the Bench only at the stage of pronouncement of the orders, we impose costs of Rs.25,000/- payable by the petitioners to each of the complainants (respondents No.5 and 6). The costs shall be paid to these respondents on the next date of listing before the HPPERC.
5(iv) Needless to clarify that we have not gone into the merits of the contentions raised by the petitioners to the complaints made by respondents No.5 and 6 and vice-versa Adjudication of the present petition is confined to the points mentioned above.
Parties are directed to appear before the Commission on 19.06.2023.::: Downloaded on - 29/05/2023 20:30:41 :::CIS
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The present writ petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.
.
Jyotsna Rewal Dua Judge Satyen Vaidya Judge May 24, 2023 R.Atal ::: Downloaded on - 29/05/2023 20:30:41 :::CIS