Allahabad High Court
Self Finance Colleges Welfare ... vs State Of U.P. And 3 Others on 13 November, 2014
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 38 Case :- WRIT - C No. - 57930 of 2013 Petitioner :- Self Finance Colleges Welfare Association And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- D.K. Singh,Bhuvnesh Kumar Singh,V.K. Singh Counsel for Respondent :- C.S.C.,Vivek Saran,Vivek Varma Hon'ble Ashwani Kumar Mishra,J.
1. Petitioner is an association of Self Financed Colleges, affiliated to M.J.P. Ruhilkhand University, Bareilly and has got itself registered as a society under the Societies Registration Act, 1860. Clause-12 of its bye-laws permits the society to institute legal proceedings on its behalf. It has filed the present writ petition challenging the decision taken by the Executive Council in its meeting dated 2.11.2011 and 27.2.2013, as intimated in the communication/order of the Registrar dated 15.7.2013, insofar as a demand of development fee @ Rs. 500/- per student has been levied from the Self Financed institutions.
2. At the very outset, Sri Vivek Verma, learned counsel appearing for the University, has raised a preliminary objection with regard to the maintainability of the writ petition on the ground that petitioner has no locus to maintain the writ petition as it is not a person aggrieved and no student, who alone could have complained, has actually raised an issue and the writ petition, therefore, is liable to be dismissed.
3. The petitioner, being a registered society, is a juristic person. It has filed the present writ petition on behalf of its members, which are Self Financed Colleges, affiliated to the respondent university. The representatives of the 12 institutions, details of which have been given in para nos. 4 & 5 of the supplementary affidavit, are the members of the committee of management of the petitioner institution. Sri G.K. Singh, learned Senior Advocate, has also made a statement that member institutions of the petitioner undertake to be bound by the outcome of the present writ proceedings. In view of the above, I am of the opinion that the petitioner association is entitled to maintain the present writ petition on behalf of its member self financed colleges.
4. The demand of development fee is restricted only to the self financed colleges and no such demand is contemplated from the students of the aided colleges. It is submitted by the learned counsel for the petitioner that decision of the respondent university to levy development charges from the self financed colleges only is arbitrary, as it discriminates against the students of self financed colleges. There is nothing on record to indicate as to why development fee is being charged only from the students of self financed colleges. The argument of Sri Vivek Verma that fee structure for aided and non aided institutions, is different, is not convincing. The university will have to justify as to why such demand is restricted to students of self financed colleges only. No reply or reason, in this regard, has been brought on record. The status of the institution has no bearing on the demand for payment of development charges. In the absence of any rational basis for the classification, this Court finds substance in the argument that the members of the petitioner are discriminated, as its students are being saddled with extra liability.
5. In such view of the matter, I am of the opinion that the petitioner is entitled to maintain the present writ petition in respect of the grievance raised, and the objections raised with regard to its maintainability is consequently rejected.
6. The demand of development fee from the students of self financed colleges has been challenged on the ground that such a demand is not backed by law. The aforesaid submission is substantiated by Sri G.K. Singh, learned Senior Counsel, by relying upon section 51(2)(j) of the U.P. State Universities Act, 1973 (herein after referred to as 'Act'). It is contended that the fee, which may be charged by an affiliated college, has to be provided in the ordinance of the university. Section 51(2)(j) of the Act is reproduced:-
"51. Ordinances- --------------
(2) Without prejudice to the generality of the provisions of sub-section (1), the Ordinance shall provide for the following matters, namely-
(j) the fees which may be charged by the University or by an affiliated or associated college for any purpose;"
7. Section 52 of the Act provides for the manner in which ordinance would have to be framed. Specific provisions relating to income or expenditure of the university for being incorporated in the ordinance also requires an approval from the State Government. Section 52(3), proviso (c), which is applicable, is reproduced:-
"52. Ordinance how made. --------
(3) Save as otherwise provided in this section, the Executive Council may, from time to time, make new or additional Ordinances or may amend or repeal the Ordinances referred to in sub-sections (1) and (2):
Provided that no ordinance shall be made -
(c) effecting the number, qualifications and emoluments of teachers of the university or the income or expenditure of the university, unless a draft of the same has been approved by the State Government."
8. On the strength of the aforesaid provision, it is contended that unless ordinances are framed, in accordance with law, making specific provision for charging of development fee, the decision to charge the amount itself is in excess of jurisdiction. Reliance has been placed upon the decision of this Court in Committee of Management Public Degree College and others Vs. State of U.P. and others: 2012 (5) ESC 3015. Para 8 of the judgment has been relied upon, which is reproduced:-
"Having heard learned counsel for the parties and having perused the records and the stand of the University, this Court does not find any justification for having a different structure of examination fee for the students of the self-financed institutions at a a higher rate. To my mind there is no rational nexus with the object sought to be achieved namely the examination fees which is in relation to examinations that are common for the self-finance institutions and aided institutions. In the absence of any rational basis for the discrimination, the equality clause as contained under Article 14 of the Constitution of India appears to have been infringed by the University by imposing different fee for the same courses and for the same examination. The status of the institution has no bearing on the nature of the examinations that are common for aided and self-financed institutions. No other material adverse to the petitioners has been placed to draw an inference otherwise. To the contrary the decision of the Finance Committee for the Session 2012-13 vindicates the stand on discrimination raised by the petitioners."
9. Sri Vivek Varma, learned counsel appearing for the university, on the other hand, has attempted to justify the decision, by referring to Section 21(1)(viii) of the Act. Section 21 provides for the power and duties of Executive Council. Section 21(1)(viii) of the Act is reproduced:-
"To fix the fees, emoluments and travelling and other allowances of the examiners."
10. He contends that levy of the development fee by the Executive Council can be traced to the aforesaid provision. He also places reliance upon the judgment delivered by this Court in Writ Petition No. 67119 of 2011, which is reproduced below:-
"Heard learned counsel for the petitioner, learned Standing counsel as well as Sri Sanjay Kumar Singh, Advocate for the respondents University.
Petitioner is an association of Self Finance Education Institutions which is affiliated to Dr.Bhim Rao Ambedkar University, Agra.
State Government on 24th March, 2011 has resolved to increase the amount in question which an incumbent was entitled to get in lieu of examination duly and in In view of service rendered in the examination. Pursuant thereto, university concerned in the meeting of the Finance Committee has resolved on 17.5.2011 by proceeding to enhance the fees of students from Rs. 1000/- to Rs. 1500/- per annum and said resolution of Finance Committee has been accepted by the Executive Council of the University concerned on 9.06.2011. At this stage petitioner has rushed to this Court contending therein that increase which has been so made is unjustifiable and uncalled for.
Once the State Government in its wisdom has taken decision to revise the remuneration of the incumbents, who are attached with the examination work and in this regard definite directives have been issued that remuneration be increased and further amount incurred for the same is to be generated by the University concerned. University concerned in order to generate the funds meeting out such expenses has subsequently resolved by an Expert Committee that is Finance Committee for making increase of Rs. 500/- per student. As far as petitioner is concerned, increase of Rs. 1000/- per annum to Rs. 1500/- per annum has been effected and the said resolution has been accepted by the Executive council. Once when enhancement in question is only from Rs. 1000/- to 1500/- and the decision in question has been taken in regard to meeting out Financial liability as directed by the State Government, then this Court can not come to the rescue of the petitioner by proceeding to interfere with the said policy decision.
A said policy decision neither infringes any Constitutional right nor infringes any statutory right conferred upon the petitioner.
Writ petition is accordingly dismissed."
11. Reliance has also been placed upon the judgment of the Apex Court reported in Municipal Council, Waraseoni and another Vs. Satish Chandra Jain and another: 1996 (7) SCC 29.
12. I have considered the respective submissions advanced and have also perused the materials placed for consideration of this Court as well as the judgements relied upon.
13. A perusal of the scheme of the Act clearly goes to show that charging of fee by the university or affiliated and associated colleges has to be provided in the ordinance. Unless the demand of development fee is backed by framing of appropriate ordinance permitting such levy of development fee, the university would not be entitled to charge such amount. This provision would otherwise restrict the possibility of levying different fee by different institutions arbitrarily. The respondent university, therefore, can levy development fee only if it is so provided by an ordinance. In the instant case, no such ordinance has been brought to the notice of the Court, which permits levy of development fee, and therefore, the charging of amount as development fee is without jurisdiction.
14. The argument of Sri Vivek Verma that source of power for levy of development fee can be traced from section 21(1)(viii) also cannot be accepted. Section 21 deals with the powers of the Executive Council. Section 21(1)(viii) deals with fixation of fee, emoluments and travelling and other allowances of the examiners only. The power to levy development fee from students of the self financed colleges cannot be traced to section 21(1)(viii) of the Act. So far as the judgement of Hon'ble Single Judge in writ petition no.67119 of 2011 is concerned, it may be noticed that the specific issue requiring adjudication by this Court was not the question under consideration therein. Moreover, the provisions, which have been noticed above, were not pressed, and therefore, the judgement delivered in that matter cannot come to the rescue of the respondent university. The judgement of Hon'ble Supreme Court in Municipal Council (supra) also has no applicability to the facts of the present case inasmuch as the judgement of the Apex Court dealt with the fixation of fee by the municipality and the question was as to whether the levy was a fee or tax. The judgements relied upon by Sri Vivek Verma, therefore, have no applicability to the facts of the present case.
15. Considering the aforesaid facts and circumstances of the case, this Court finds that the demand of the university to levy development fee since is not backed by the appropriate statutory provision, therefore, it cannot be sustained. The law is otherwise settled that if the statute requires a thing to be done in a particular manner, it has to be done in that matter alone and no other procedure for the purpose can be resorted. Once the Act provides the procedure for determination of fee, the university was bound to have charged fee only in such manner and its decision to levy the development fee without complying with the provisions of the Act cannot be sustained. Consequently, writ petition succeeds and is allowed.
16. The decision of the Executive Council held in its meeting dated 2.11.2011 and 27.2.2013 as communicated vide order of the Registrar dated 15.7.2013, insofar as it raises a demand for payment of Rs. 500/- as development fee from the students of self financed institutions, is quashed. This Court had passed an interim order, whereby the amount collected as development fee was directed to be kept in a separate deposit by the university. Since the writ petition has been allowed, it is provided that the amount in this regard, kept with the university shall be returned to the colleges, with a further direction to the colleges to return such amount to the students concerned.
17. No order, however, is passed as to costs.
Order Date :- 13.11.2014 dhirendra/Ashok Kr.