Allahabad High Court
Apeejay School And Anohter vs State Of U.P. And 2 Others on 5 February, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - C No. - 14911 of 2019 Petitioner :- Apeejay School And Anohter Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ritesh Upadhyay Counsel for Respondent :- C.S.C.,Manish Goyal Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order passed by the District Fee Regulatory Authority respondent no. 2 dated 19.2.2019, as also a consequential order dated 20/22.4.2019 contained in Annexures- 3 & 6 to the writ petition. The orders are assailed by contending that 'The Uttar Pradesh Self-Financed Independent Schools (Fee Regulation) Act, 2018' (hereinafter referred to as the 'Act of 2018') was promulgated on 12.9.2018 by when the academic Sessions 2018-2019 had already commenced. It is stated that a direction was issued by the authorities to fix fee in accordance with the provisions of the Act of 2018. Petitioners state that it proceeded to fix fee accordingly and also informed the authorities about its decision. It appears that when such facts were brought to the notice of the committee it took exception to the enhancement of fees made by the institution and has directed that the fee which was being charged at the commencement of academic session alone be realised and the excess amount charged from students be refunded. The enhancement of fees, without permission of the committee has been treated as breach of the statutory provisions and consequently penalty of a sum of Rs. one lakh has also been imposed.
The order impugned is challenged on the ground that determination of fee pursuant to the order of the respondents resulted in hike of fee in certain classes and for certain other classes the fee came down. This was allegedly pursuant to the directions issued by the authority themselves, and therefore, no penalty could be imposed upon the petitioners. It is also submitted that in accordance with the Act of 2018, the Fee Regulatory Committee has to determine the fee which could be charged from the students by the institution concerned but in the facts of the present case, no such determination has been made by the authority concerned. Submission is that the order impugned is not referable to the provisions of the Act inasmuch as the authority is required to determine the fees to be charged from the students and that without any determination of fee, on merits, by the committee, it has no jurisdiction to direct the institution to realise fee as was being done earlier, particularly when the enhancement is as a result of its own direction.
Although time was granted to the respondents to file counter affidavit but no counter affidavit has been filed. The matter has remained pending for fairly long. The correct determination of fee is held up for thousands of students studying in the institution concerned. The petition is thus required to be decided at the earliest.
Considering the nature of order proposed to be passed, no further time is required to be given to the respondents and the writ petition is taken up for hearing at the admission stage itself.
The Act of 2018 has been promulgated with an intent to regulate charging of fee by privately managed institution. A specific statutory authority has already been constituted for such purpose. Relevant considerations are specified in the Act for determination of fee to be charged by the institution. In the facts of the present case, this Court finds that the Fee Regulatory Authority has not determined the fee to be charged by the institution from the students concerned, as is required under the Act.
Merely stating that the institution will charge fee as was being charged earlier, would not suffice. The committee is expected to examine the materials placed before it and determine the fee in accordance with the Act. Since such exercise has not been undertaken the writ petition was entertained and interim protection was granted. Appellate forum contemplated under section 9 was not available then. This Court is however of the opinion that no useful purpose would be served in keeping the matter pending or relegating the petitioner to the remedy of appeal when the determination on merits is yet to be made by the competent authority under the Act of 2018.
Writ petition consequently succeeds and is allowed. Orders impugned dated 19.2.2019 and 20/22.4.2019 are quashed. Petitioner shall appear before respondent no. 3 alongwith certified copy of this order on 17.2.2020. The Fee Regulatory Authority shall fix a date and require the petitioners to furnish all relevant details as may be warranted for proper determination of fees. A fresh determination would be made by the committee concerned within a period of six weeks. Any deposit made pursuant to the orders impugned shall be refunded. No order is passed as to costs.
Order Date :- 5.2.2020 n.u.