Karnataka High Court
Sri Siddhartha Medical College ... vs Union Of India on 28 February, 2000
Equivalent citations: AIR2001KANT457, ILR2001KAR278, AIR 2001 KARNATAKA 457, 2001 AIR - KANT. H. C. R. 2705, (2001) ILR (KANT) (1) 278, (2001) 1 KANT LJ 139, (2001) 7 SERVLR 116, (2002) 1 ESC 147
Author: Mohamed Anwar
Bench: Mohamed Anwar
ORDER
1.This writ petition has been filed by the Students' Parents Association of Sri Siddartha Medical College, Tumkur, questioning the competence of Government of India to fix the fees structure for students admitted to medical and dental colleges as has been sought to be done under communication dated 26-3-1999 (Annexure-B) in purported exercise of powers under Clause 8(b) of the Medical Council of India (Norms and Guide-lines for Fees and Guidelines for Admissions in Medical Colleges) Regulations, 1994 and Clause 8(b) of the Dental Council of India (Norms and Guidelines for fees and Guidelines for Admission in Dental Colleges) Regulations, 1994 (in short the 'MCI and DCI Regulations').
2. The sole legal issue raised before us concerns determination of respective legislative competence and interpretation of certain Central enactments and the Regulations framed thereunder in order to ascertain as to who is the final statutory authority under those enactments to specify the tuition fees chargeable from the students pursuing their studies in colleges affiliated to Universities, as defined under Section 2(f) of the University Grants Commission Act, 1956 (in short the UGC Act'), or, the deemed Universities under Section 3 of the said Act.
3. The petitioner-association is comprised of parents whose children are studying in 3rd, 4th and final year MBBS course at Siddartha Medical College, Tumkur, which is classified as 'B' category college and it is affiliated to the Rajiv Gandhi University of Health Sciences (in short the 'University'). This University has been established and incorporated under Section 3 of State's enactment namely "Rajiv Gandhi University of Health Sciences Act, 1994" (in short the 'Health Sciences Act').
4. Prior to issuance of the impugned communication/order at Annexure-B by the Central Government, the professional colleges were charging tuition fees fixed by the State Government by its order dated 22-10-1997, which was quashed by this Court in the case of Nishanth Hiremath v Dr. B.R. Ambedkar Medical College and Others, on the ground that under Clause 8(b) of the MCI Regulations, it is the Central Government alone which can fix the professional fees in relation to MBBS course. It is the allegation of the petitioner-association that subsequently the Central Government, acting upon the very recommendations of the State Committee which had formed the basis of the Government order dated 22-10-1997 already quashed by this Court, has fixed the same fees structure being Rs. 90,000/- for the academic year 1999-2000 in respect of 'B' category medical colleges. Their submission is that keeping in view the provisions contained in Section 12-A of the UGC Act, it is the University Grants Commission (in short the 'UGC') alone which can make regulations and specify the matters is respect of fees which may be charged as also the scale of fees.
5. Learned Counsel appearing for the respondents namely the Union of India, University Grants Commission, Medical Council of India as also the State of Karnataka have virtually refused to take any firm stand regarding competence of any particular authority to prescribe fee on the ground that because of pulls, pressure and embarrassments, working at the background, they have been unable to seek any clear instructions on the issues involved. They merely submitted that this Court may decide the issue keeping in view the provisions contained in the Constitution of India, the respective Central and State enactments and the relevant decisions/pronouncements of the Supreme Court.
6. With the said background and state of affairs appearing at the Bar, we now proceed to do our job. The vice of commercialisation of educational institution in general and professional colleges in particular has been highlighted and deprecated by the Supreme Court on various occasions starting with Miss Mohini Jain v State of Karnataka and Others, which led to formulation of a scheme for admission to professional colleges in Unnikrishnan, J.P. v State of Andhra Pradesh . The Supreme Court has also from time to time prescribed the tuition fee for admission to medical, dental and engineering courses but ultimately by its order dated 9-8-1996 in the case of T.M.A. Pai Foundation and Others v State of Karnataka, directed the respective statutory authorities to discharge the said functions.
7. It is only after the above direction of the Supreme Court, the Central Government has come up with the impugned order prescribing the tuition fees for medical and dental colleges. Similar exercise has been done by the All India Council for Technical Education under the 'All India Council for Technical Education (Norms and Guidelines for fees and Guidelines for admission in professional colleges) Regulations, 1994' (in short the 'AICTE Regulations'). The UGC has also framed regulations under the UGC Act called "the University Grants Commission (Regulation of Admission and Fees in Private Non-aided Professional Institutions) Regulations, 1997" (in short 'the UGC Regulations') which have come into force from 5-5-1998, the date of its publication in the Official Gazette of India.
8. The Central Government, under its Statement of Objections, after briefly setting out the developments which had taken place in the cases of Unnikrishnan and T.M.A. Pai Foundation, supra and the orders passed by the Supreme Court from time to time in the latter case, has clearly admitted that.--
"The Central Government have no statutory powers to fix fee except the MCI Regulations and the directions of the Supreme Court in Unnikrishnan's case and TMA Poi's. case, supra".
9. Therefore, it is necessary to ascertain as to whether the authority of the Central Government to prescribe tuition fees for medical and dental courses can be traced to (i) any direction of the Supreme Court, or, (ii) any statutory provision.
REG. SUPREME COURT ORDERS
10. The Supreme Court, in its order dated 9-8-1996 passed in the case of T.M.A. Pai Foundation's case, supra, has meticulously set out the details of the orders that it had passed from time to time regarding fees that were to be charged in professional colleges. In Unnikrishnan's case, supra, the Supreme Court had framed a scheme in the nature of guide-lines for admission to professional colleges. Clauses (a), (b) and (c) of paragraph 6 of the Scheme, in particular, dealt with the fees aspect. In order to understand the basis of rival contentions, it is appropriate to cull out the clauses (a), (b) and (c) of para 6 of the Scheme which read thus.--
"(6)(a) Every State Government shall forthwith constitute a Committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as the case may be. The Committee shall consist of a Vice-Chancellor, Secretary for Educa-
tion (or such Joint Secretary, as he may nominate) and Director, Medical Education/Director Technical Education. The Committee shall make such enquiry as it thinks appropriate. It shall, however, give opportunity to the professional colleges (or their association(s), if any) to place such material, as they think fit. It shall, however, not be bound to give any personal hearing to any one or follow any technical rules of law. The Committee shall fix the fee once every three years or at such longer intervals, as it may think appropriate.
(b) It would be appropriate if the U.G.C. frames regulations under Section 12-A(3) of the U.G.C. Act, regulating the fees which affiliated colleges, operating on no-grant-in-aid basis, are entitled to charge. The Council for Technical Education may also consider the advisability of issuing directions under Section 10 of the A.I.C.T.E. Act regulating the fees that may be charged in private unaided educational institutions imparting technical education. The Indian Medical Council and the Central Government may also consider the advisability of such regulation as a condition for grant of permission to new medical colleges under Section 10-A and to impose such a condition on existing colleges under Section 10-C.
(c) The several authorities mentioned in sub-paras (a) and (b) shall decide whether a private educational institution is entitled to charge only that fee as is required to run the college or whether the capital cost involved in establishing a college can also be passed on to the students and if so, in what manner. Keeping in view the need, the interest of general public and of the nation, a policy decision may be taken. It would be more appropriate if the Central Government and these authorities (U.G.C, I.M.C. and A.I.C.T.E.) coordinate their efforts and evolve a broadly uniform criterion in this behalf. Until the Central Government, U.G.C., I.M.C. and A.I.C.T.E. issue orders/regulations in this behalf, the Committee referred to in sub-para (a) of this para shall be operative. In other words, the working and orders of the Committee shall be subject to the orders/regulations, issued by Central Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may be".
11. Subsequently, since the appropriate authorities had failed to fix the fees to be charged by the professional colleges, in T.M.A. Pai Foundation's case, supra, the Supreme Court under its orders dated 7-10-1993 in T.M.A. Pai Foundation and Others v State of Karnataka and Others, dated 13-5-1994 in T.M.A. Pai Foundation and Others v State of Karnataka and Others, dated 11-8-1995 in T.M.A. Pai Foundation and Others v State of Karnataka and Others and that dated 10-5-1996 fixed the fees for the academic years 1993-94, 1994-95, 1995-96, and 1996-97 respectively.
12. Ultimately, the Supreme Court under its order dated 9-8-1996 in T.M.A. Pai Foundation's case, supra, refused to fix the fees for the professional courses by clearly holding and directing that fixing of fees is not the function of the Apex Court and with effect from the Academic Year 1997-98, it shall be the responsibility of the authorities aforesaid to prescribe the fee payable in these colleges.
13. On a reading of the above orders of the Supreme Court, it can justifiably be inferred that the Supreme Court had not at all held that it is the Central Government, which will be competent to prescribe the fees for professional colleges. As a matter of fact, the question as to who will be competent authority to prescribe the fees in relation to professional courses, had not at all fallen for consideration before their Lordships.
14. In the orders referred to above, the Supreme Court has repeatedly said that the guidelines set out in Unnikrishnan's case, supra, was tentative in nature and that the statutory authorities have themselves to work out the desired steps to be taken within the framework of the respective statutes. It was only because of this that in paragraph 6(b) of the Scheme framed by the Supreme Court in Unnikrishnan's case, supra, it had been said that the UGC can frame regulations under Section 12-A(3) of the U.G.C. Act and A.I.C.T.E. can regulate the charges of fees by issuing appropriate directions under Section 10 of AICTE Act, which provides for powers and functions of the Council. So far as Medical Council of India (in short the 'MCI') and the Central Government are concerned, the Supreme Court had opined that they may consider the advisability of framing of some regulation whereunder charging of prescribed fee may be made a condition for grant of permission to new medical colleges and to impose such a condition on existing colleges. To our understanding, the Supreme Court no where in specific terms has declared that any particular statutory authority or the Central Government is competent to determine and fix the tuition fee chargeable by the professional colleges.
A look at the Central and State enactments and Regulations/Rules framed thereunder
15. In order to find out as to whether there is any express statutory provision empowering any particular authority to specify tuition fees chargeable by the professional colleges, we may now have a look at the relevant Central and State enactments.
THE INDIAN MEDICAL COUNCIL ACT
16. The Indian Medical Council Act (in short the 'MCI Act') is a Central enactment. It has not made any specific provision regarding fixation of tuition fee chargeable by medical colleges for under-graduate or post-graduate courses. Still, the Medical Council of India (Norms and Guidelines for fees and Guidelines for Admission in Medical Colleges) Regulations, 1994 have been framed purported to be under clause (n) of Section 33 of the MCI Act.
17. Regulation 8 of the MCI Regulations deals with 'Fee structure'. This regulation reads as under.--
"8. Fee structure.--(a) The term "fees" as applicable to 'free seats' and 'payment seats' shall cover all the institutional fees including tuition fee.
(b) The fee payment for payment seats in private medical colleges shall be fixed by the Government of India from time to time. The fee structure fixed by the Government of India shall be binding on institutions covered under Clause 2 of these regulations".
18. Section 33 of the MCI Act provides for power to make regulations. Clause (n) of Section 33 reads as under.--
"33. Power to make regulations.--The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provide for--
(a)xxx xxx xxx;
(n) any matter for which under this Act provision may be made by regulations".
19. We have closely examined the provisions contained in the MCI Act but we could not find any express provision which provides that the tuition fees can be prescribed by the MCI by regulations or even otherwise.
UNIVERSITY GRANTS COMMISSION ACT, 1956
20. In the case of Prem Chand Jain and Another v R.K. Chhabra, it has been held that the U.G.C. Act is essentially intended to make provisions for the coordination and determination of standards in Universities and is squarely covered under Entry 66 of List I of the VII Schedule to the Constitution. It has further been held that.--
"As long as the legislation is within the permissible field in pith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an aspect beyond it. In a series of decisions this Court has opined that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature enacting it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature".
21. Keeping in view the above constitutional aspects as explained by the Supreme Court, the Parliament, through University Grants Commission (Amendment) Act inserted a new Section, 12A, in the UGC Act providing for 'Regulation of fees and prohibition of donations in certain cases'. By the said amendment Act, clauses (h), (i) and (j) were also inserted in Section 26. The reason for the making the said insertions, as set out in the statement of objects and reasons, is the following.--
''3. A very serious situation has arisen in recent years because of mushroom growth of private colleges, specially Engineering Colleges, in certain States, which charge huge sums of donations as capitation fees for admission to various courses of study offered by them. To tackle this evil which has grave deleterious consequences the Bill seeks to empower the University Grants Commission to determine the scales of fees charged by colleges and to deny grants to and to de-recognise, the college, which violates this pro-vision, so that it cannot send up any candidates for the examinations. The Bill also provides for inquiry before de-recognition of a college, and also for taking care of the interests of the students who are already enrolled in the college".
(emphasis supplied)
22. Sub-section (1) of Section 12-A of the UGC Act sets out definitions inter alia for the words 'college', 'qualification', 'specified course of study', and 'student', which are relevant for the present purpose read thus.--
"(a) xxx xxx xxx;
(b) "College" means any institution, whether known as such or by any other name which provides for a course of study for obtaining any qualification from a University and which, in accordance with the rules and regulations of such University, is recognised as competent to provide for such course of study and present students undergoing such course of study for the examination for the award of such qualification;
(d) "Qualification" means a degree or any other qualification awarded by a University;
(f) "Specified course of study" means a course of study in respect of which regulations of the nature mentioned in sub-section (2) have been made;
(g) "Student" includes a person seeking admission as a student".
23. Sub-section (2) of Section 12-A of the UGC Act is the most material provision for resolving the controversies raised herein. This section reads as under.--
"Section 12-A. Regulation of fees and prohibition of donations in certain cases.--
(1) xxx xxx xxx; (2) Without prejudice to the generality of the provisions of Section 12 if, having regard to-- (a) the nature of any course of study for obtaining any qualification from any University; (b) the types of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification; (c) the minimum standards which a person possessing such qualification should be able to maintain in his work relating to such activities and the consequent need for ensuring, so far as may be, that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing admission to such course of study; and (d) all other relevant factors,
the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the University or Universities concerned, specify by regulations the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters on and from such date as may be specified in the regulations in this behalf, by any college providing for such course of study from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study:
Provided that different matters and different scales of fees may be so specified in relation to different Universities or different classes of colleges or different areas''.
24. Sub-section (3) of Section 12-A of the UGC Act makes it obligatory on the part of the affiliated colleges to abide by the regulations framed by the UGC under sub-section (2) of Section 12. This section reads as under.--
"(3) Where regulations of the nature referred to in sub-section (2) have been made in relation to any course of study, no college providing for such course of study shall--
(a) levy or charge fees in respect of any matter other than a matter specified in such regulations;
(b) levy or charge any fees in excess of the scale of fees specified in such regulations, or
(c) accept, either directly or indirectly, any payment (otherwise than by way of fees) or any donation or gift (whether in cash or kind), from, or in relation to, any student in connection with his admission to, and prosecution of, such course of study".
25. Sub-sections (4), (5) and (6) of Section 12-A of the UGC Act empowers the UGC to take punitive measures against the affiliated colleges, who fail to abide the UGC Regulations framed under sub-section (2) of Section 12-A of the UGC Act. These sub-sections read thus.--
"(4) If, after making, in relation to a college providing for a specified course of study, an inquiry in the manner provided by regulations, and after giving such college a reasonable opportunity of being heard, the Commission is satisfied that such college has contravened the provisions of sub-section (3), the Commission may, with the previous approval of the Central Government, pass an order prohibiting such college from presenting any students then undergoing such course of study therein to any University for the award of the qualification concerned.
(5) The Commission shall forward a copy of the order made by it under sub-section (4) to the University concerned, and on and from the date of receipt by the University of a copy of such order, the affiliation of such college to such University shall, insofar as it relates to the course of study specified in such order, stand terminated and on and from the date of termination of such affiliation and for a period of three years thereafter affiliation shall not be granted to such college in relation to such or similar course of study by that or any other University.
(6) On the termination of the affiliation of any college under sub-section (5), the Commission shall take all such steps as it may consider appropriate for safeguarding the interests of the students concerned".
26. Sub-section (7) of Section 12-A of the UGC Act, gives overriding effect to the provisions contained under Section 12-A and the regulations framed thereunder. This section reads thus.--
"(7) The provisions of this section and the regulations made for the purposes of this section shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force".
27. Section 26 of the UGC Act empowers the UGC to frame regulations. To effectuate the Parliamentary intendments set out under Section 12-A, consequent insertions were made in Section 26 as well. The relevant clauses are reproduced thus.--
"Section 26. Power to make regulations.--(1) The Commission may, by notification, in the Official Gazette, make regulations consistent with this Act and the rules made thereunder-
(a) xxx xxx xxx; (h) regulating the establishment of institutions referred to in clause (ccc) of Section 12 and other matters relating to such institutions; (i) specifying the matters in respect of which fees may be charged, and scales of fees in accordance with which fees may be charged, by a college under sub-section (2) of Section 12-A; (j) specifying the manner in which an inquiry may be conducted under sub-section (4) of Section 12-A".
28. A bare reading of sub-section (2) of Section 12-A of the UGC Act as reproduced above, makes it abundantly clear that the Parliament has empowered the UGC alone to specify by Regulations the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees shall be charged in respect of those matters by any college providing a specified course of study from, or in relation to, any student in connection with his admission to, or continuation of his studies in the given course. Sub-section (3) creates a complete restraint against the affiliated colleges from charging any fee under any head except those provided under the Regulations or from charging fee in excess of scale of fees as statutorily provided. The Parliament in un-equivocal terms has provided that no college can accept either directly or indirectly any payment other than the prescribed fee or any donation or gift either in cash or in kind from any student in connection with his admission or continuation of his studies.
29. Sub-section (4) of Section 12-A of the UGC Act is a penal provision, in the sense that any college found guilty of violating the regulations framed under Section 12-A has to suffer an action, which may virtually lead to its closure. Sub-section (7) of Section 12-A is non obstante clause providing that the provisions contained therein and the regulations framed thereunder will have an overriding effect notwithstanding anything inconsistent; therewith contained in any other law for the time being in force.
REG. STATE ENACTMENTS (A) THE KARNATAKA EDUCATIONAL INSTITUTIONS (PROHIBITION OF CAPITATION FEE) ACT, 1984
30. The Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 (in short the 'Capitation Fee Act') has been enacted after receiving the assent of the President on 12-7-1984. Section 5 thereof, which is material for the present purpose, reads as under.--
"5. Regulation of fees, etc.--(1) It shall be competent for the Government, by notification, to regulate the tuition fee or any other fee or deposit or other amount that may be received or collected by any educational institution or class of such institutions in respect of any or all class or classes of students.
(2) No educational institution shall collect any fees or amount or accept deposits in excess of the amounts notified under sub-section (1) or permitted under the proviso to Section 3.
(3) Every educational institution shall issue an official receipt for the fee or capitation fee or deposits or other amount collected by it.
(4) All monies received by any educational institution by way of fee or capitation fee or deposits or other amount shall be deposited in the account of the institution, in any Scheduled Bank and shall be applied and expended for the improvement of the institution and the development of the educational facilities and for such other related purposes and to such extent and in such manner as may be specified by order by the Government.
(5) In order to carry out the purposes of sub-section (4), the Government may require any educational institution to submit their programmes or plans of improvement and development of the institution for the approval of the Government".
(B) THE RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES ACT, 1994
31. The Rajiv Gandhi University of Health Sciences Act, 1994 (in short the 'Health Sciences Act') has been enacted by the State Legislature under Entry 25 of List III of the Constitution of India. Section 35 of the Act, which empowers the Syndicate to make ordinances. Clause (a) of sub-section (2) of this section empowers to make ordinances inter alia to provide the matters related to admission of a student to University and its affiliated colleges and the levy of fee for admission to the University, colleges, and University Laboratories.
Pondering over the issue involved
32. Presently, we have two legislative entries pertaining to the field of education in the VII Schedule to the Constitution of India. Firstly, Entry 66 of List I, i.e., Union List, is as follows.--
"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions".
33. Secondly, Entry 25 of List III, i.e., the Concurrent List, which reads thus--
"25. Education, including technical education, medical education and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of the List I; vocational and technical training of labour".
34. It may be noticed here that the above Entry 25 in List III in the present form was incorporated by virtue of the Constitution (Forth-second Amendment) Act, 1976, which came into force with effect from 3-1-1977, by which Entry 11 in the State List was deleted and Entry 25 of List III as it stands now was substituted.
35. Article 246(1) of the Constitution declares that the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule, i.e., Union List. There-fore, if it is found that the Central enactment relates to matter enumerated in the Union List, then ipso facto competence of the State legislature gets completely denuded in respect of the said matter. [See Indu Bhusan Base v Rama Sundari Debt and Another].
36. Further, even if both the Central and State enactments can be justified as being enacted in respect of matter enumerated in List III of the Seventh Schedule, i.e., Concurrent List and if those are found repugnant in certain areas, then to the extent of repugnancy, the Parliament enactment has to prevail and occupy the field unless the State legislation has received the assent of the President.
37. It is also to be borne in mind that keeping in view the proviso to sub-clause (2) of Article 254 of the Constitution, even if the State enactment bas received assent of the President but Parliament subsequently makes a law in respect of the same matter, then the latter has to prevail.
38. In the case of Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v State of Tamil Nadu and Others, para 32, it has been held that.--
"The fact that the State Act has received the assent of the President would be of no avail because repugnancy is with the Central Act which was enacted by the Parliament after the enactment of the State Act".
39. Now, coming to the present case, no doubt the Capitation Fee Act empowers the State Government to prescribe tuition fee and related matters, but subsequent to the enforcement thereof, the Parliament by amendment to the UGC Act incorporated Section 12-A expressly covering the said very area of legislation and empowered the UGC to prescribe tuition fee for institutions of higher education.
40. Keeping in view the above constitutional perspectives and the legislative developments, the State Legislations, namely, the Capitation Fee Act and the Health Sciences University Act have to give way to the UGC Act. This is for the reasons that (i) the matters covered by Section 12-A of the Act has to be held as in exclusive legislative domain of the Parliament, and in the alternative, (ii) even if the provisions under Section 12-A of the UGC Act are held to be covered by Entry 25 of List III, there is obvious repugnancy between the State and the Central Legislations.
41. After having dealt with repugnancy between the State and the Central legislations, we have now to find out as to whether the UGC Act will prevail over the other Central legislations like the MCI Act, DCI Act and AICTE Act in relation to fee aspects.
42. As we have already noticed above, the Parliament, except under Section 12-A of the UGC Act, in none of its other legislations pertaining to education, has granted express statutory power to any person or authority or body to determine and specify the heads under which fees can be charged by the educational institutions and to specify scale of fees. Under Section 12-A of the UGC Act, the Parliament has in unambiguous terms has authorised only the UGC to specify the scale of fees by making further provisions for making compliance of such regulations as mandatory and non-compliance to be punitive.
42-A. We have taken the above view with awareness that, under Section 10 of the AICTE Act, 1987, one of the functions assigned to the Council constituted thereunder is to "fix norms and guidelines for charging tuition and other fee" [Clause (J)]. But there is a marked difference between the power to "fix norm and guidelines" and the power to "specify" the same.
42-B. According to Webster Dictionary (Encyclopedic Edition), "norms" means "an average especially one taken as a measure or standard for attainment". On the other hand, the word "specify" means "to name or mention explicitly".
42-C. Therefore, the Council under Section 10 of the AICTE Act can at best set down the norms and guidelines for charging of fees and by keeping in view the same and the other relevant considerations, it is the UGC which has to specify the tuition and other fees. Certainly, the Council for Technical Education or its delegate cannot discharge the functions of specifying the said fees.
43. In sub-section (7) of Section 12-A of the UGC Act, there is a clear declaration that the provisions contained therein and the regulations framed thereunder will have an overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
44. In the case of Union of India and Another v G.M. Kokil and Others, para 12, it has been held that.--
"It is well-known that non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may he found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions".
45. In the above view of the matter, we have no hesitation in holding that the power to specify the fees in respect of colleges as defined in clause (b) of Section 12-A(1) of the UGC Act lies only with the UGC and none else.
REG: U.G.C. REGULATIONS
46. Pursuant to the powers conferred under sub-section (2) of Section 12-A of the UGC Act read with clause (i) of sub-section (1) of Section 26 of the UGC Act, the UGC has framed "the University Grants Commission (Regulation of Admission and Fees in Private Non-aided Professional Institutions) Regulations, 1977" (in short the "UGC Regulations'). These regulations have come into force from 16-5-1998, the date of publication in the Gazette of India.
47. Regulation 2 of the UGC Regulations relates to its applicability to certain classes of colleges and Universities. This regulation reads thus.--
"2. Applicability.--These regulations shall apply to:
(a) colleges affiliated to the Universities and operating on 'no grant-in-aid' basis;
(b) institutions deemed to be Universities under Section 3 of the Act, if such institutions operate on self-financing basis with-out receiving maintenance grants from the Central Government, any State Government or any statutory body under their control and disbursing grants;
(c) Universities not receiving grant-in-aid from the Central Government or any State Government or any grant disbursing statutory bodies of such Governments for the maintenance or development expenditure of such Universities; and
(d) Universities established as a joint venture between a private trust or society and a State Government".
48. Regulation 3 of the UGC Regulations is definition clause. The relevant definitions, which are material for the present, are reproduced thus.--
"(b) "Appropriate Authority" means the Central Government, a State, the Commission, a University or other authority which under any law for the time being in force, is competent to grant permission to establish, or to grant recognition to a professional educational institution;
(d) "Committee" means the Standing Committee of the Commission or the State Level Committee, as the case may be;
(e) "Competent Authority" means the University Grants Commission, the Central Government, a State Government or a University or any other authority, as may be designated by the Commission, to determine the fees or scales of fees payable by students and the allotment of students for admission to various professional institutions;
(f) "Fees" in relation to payment seats or free seats means all the institutional fees including tuition fee and development fee;
(g) "Free Seats" means the seats on which the fee payable by a student seeking admission to, and prosecution of, a course of study at a level corresponding to the fees as specified for the Government colleges and institutions in the concerned State or Union Territory in respect of similar course of study;
(h) "Institution" means a college affiliated to a University or approved or recognised by Government or any competent statutory body, including the All India Council for Technical Education, Dental Council of India, Medical Council of India and National Council for Teacher Education, established or incorporated by, or under, a Central Act or a State Act, and includes an institution deemed to be a University declared by the Central Government on the recommendation of the Commission under Section 3 and all institutions recognised by the Commission under clause (f) of Section 2 and imparting education;
(i) "NRI" means a Non-Resident Indian and the expression "non-resident" has the same meaning as assigned to it under the Income-tax Act, 1961 (43 of 1961);
(j) "Professional institution" includes any private unaided institution imparting education in Social Work, Home Science, Library Science, Education, Computer Science, Commerce, Law and the like and includes such other institution to which these regulations are made applicable by the Commission;
(k) "Payment Seats" means seats other than Free Seats and for which fee payable by a student seeking admission to, and prosecution of, a course of study shall not exceed the limits specified under these regulations;
(m) "Student" includes a person seeking admission in a course of study".
49. Regulation 5 of the UGC Regulations provides for constitution of Committee for fixation of fees payable. Sub-regulation (1) thereof relates to professional institutions affiliated to Central Universities, deemed Universities and Universities not receiving grant-in-aid and Universities established as a joint venture between a private trust or society and a State Government. Sub-regulation (2) thereof speaks of composition of the Committee constituted under sub-regulation (1). For the present purpose, sub-regulation (3), which relates to prescription of fees in professional institutions affiliated to State Universities is relevant. This regulation reads thus.--
"5. Constitution of Committees for fixation of fees payable.--
(1) xxx xxx xxx;
(3) (i) The fees in professional institutions affiliated to State Government Universities shall be determined by a Committee called the State level Committee;
(ii) The State Level Committee which may be constituted in every State by the Commission shall consist of:
(a) Vice-Chancellor of one of the Universities in the State nominated by the State Government concerned - Chairperson,
(b) Secretary in charge of Higher Education of the State Government concerned - Member,
(c) Secretary of the Finance Department of the State Government concerned - Member,
(d) Three experts, one each in Institutional Finance, Cost Accountancy and Economics to be nominated by the Commission - Members,
(e) A Finance Officer of one of the Universities to be nominated by the State Government - Member, and
(f) Director in charge of Higher or Collegiate Education of the State Government concerned - Member Secretary".
50. Regulation 6 of the UGC Regulations lays down the procedure to be adopted by the Committees constituted under these regulations. Regulation 10 of the UGC Regulations dictates how institutions have to maintain the accounts of fees.
51. Regulation 11 of the UGC Regulations deals with other matters connected with levy of fees. It will be beneficial to reproduce this regulation, which reads thus.--
"11. Other procedural matters connected with levy of fees.--
(1) (i) Fees once fixed shall be valid for a period of three years. (ii) Fee may be payable in advance for a semester. (iii) Each Committee shall notify in the month of December every year, for general information, the total fee payable per semester for the next year, in three newspapers having circulation in the State concerned. Every year, the Committee shall fix the fees applicable for the third year.
(2) While fixing the fees, every year, the Committee shall take into account the unspent balance, if any, in the maintenance and development accounts of the concerned professional institution.
(3) No professional institution shall.--
(i) levy any fee exceeding the fee notified under these regulations;
(ii) fail to maintain accounts required to be maintained as per the provisions of these regulations or the guidelines issued by the Commission".
52. Having held that it is the UGC alone which can determine and specify the fees structure, the further questions which arise for our consideration in the context of UGC Regulations are.--
(i) Whether the UGC Regulations are applicable to all the professional colleges including those imparting medical, dental and engineering courses? and,
(ii) Whether the power of prescribing the fees structure can be delegated by the UGC to any of its nominees like the Committees constituted under the Regulations or in favour of any other person, like the State Government or the Central Government?
53. So far as the first question is concerned, the answer clearly lies in Regulation 2 of the UGC Regulations, being the applicability clause as also definitions of 'institution' and the 'professional institution' as de-fined under clause (h) and (j) of Regulation 3 of the UGC Regulations. As per Regulation 2, the UGC Regulations clearly applies to all the colleges affiliated to the Universities and operating on 'no grant in aid' basis and deemed Universities irrespective of the fact whether the said colleges are imparting professional education or in any other discipline of learning.
54. Regulations 5, 6 and 7 of the UGC Regulations speaks of constitution of Committees and the procedure to be followed by such Committees for determination of fees in professional institutions only. On the other hand, 'Competent Authority' as defined under clause (e) of Regulation 3 of the UGC Regulations to mean that the University Grants Commission, the Central Government, a State Government or any other authority as may be designated by the Commission to determine the fees or scales of fees payable by students and the allotment of students for admission to various professional institutions.
55. A layman's reading of the above provision contained in the UGC Regulations, may lead to a reasonable inference that the UGC at the same breadth had tried to empower the Committees constituted under Regulation 5 as also the Competent Authority as defined under clause (e) of Regulation 3, to determine the fees or the scale of fees payable by the students to various professional institutions.
56. Before trying to resolve this controversy, let us first understand what is meant by professional institutions as sought to be defined under the UGC Regulations.
57. Sri Shailendra Kumar, learned Counsel appearing for the UGC, on the basis of the instructions and affidavit of the Chairman, has sought to impress upon us that the present Regulations do not apply to professional institutions like Medical, Dental and Engineering colleges. It is difficult to understand the rationality for taking such a stand on behalf of the UGC. For the reason as discussed above, it is only the UGC which can specify and prescribe the scale of fees in relation to institutions of higher education and if it intends to take the plea that its regulations does not purport to do so, then it is clearly in violation of the Supreme Court directives contained in Unnikrishnan's case, supra, as also the order dated 9-8-1996 passed in T.M.A. Pai's case, supra.
58. Anyhow, on a plain reading of the applicability provisions contained in Regulation 2 and the definitions of "institutions' and 'professional institutions' as defined under clauses (h) and (j) of Regulation 3, we are of the opinion that the Medical, Dental and Engineering colleges are very much covered under the provisions of the UGC Regulations.
The definition of 'professional institution' has been engrafted in an inclusive form. Therefore, it has to take its colour from a common parlance understanding along with the extended and inclusive meaning given to it under clause (j) of Regulation 3.
59. Our views find sufficient support from the definition of the professional institutions given by the Supreme Court in the Scheme framed by it in Unnikrishnan's case, supra. In para 1 thereof, the expression 'professional college' has been declared to be inter alia including "medical colleges, dental colleges and other institutions and colleges imparting Nursing, Pharmacy and other courses allied to Medicine, established and/or run by private educational institutions".
60. Coming to the second question regarding delegation of power to specify fees structure, it is quite eloquent that under sub-section (2) of Section 12-A of the UGC Act, the power to specify the matters in respect of which fees can be charged and the scale of fees can be specified lies only with the UGC. The Parliament has not authorised the UGC to delegate the said power to any other Committee or body or person. The above view of ours is substantiated by the limited delegating powers conferred on it under Section 27 of the UGC Act, which reads thus.--
"27. Power to delegate.--(1) The Commission may, by regulations made, by notification in the Official Gazette, under this Act, delegate to its Chairman, Vice-Chairman or any of its officers, its power of general superintendence and direction over the business transacted by, or in, the Commission, including the powers with regard to the expenditure incurred in connection with the maintenance of the office and internal administration of the Commission, (2) No regulation shall be made under this section except with the previous approval of the Central Government".
61. The above provision clearly shows that the UGC can delegate certain administrative powers like that of general superintendence and direction over the business transacted etc., and not the legislative powers like that of prescribing or specifying the fees structure as contained in Section 12-A of the UGC Act.
62. In the case of Marathwada University v Seshrao Balwant Rao Chavan, para 10, has been held that.--
"It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation".
63. While holding as above, the Supreme Court with approval has relied on the passage from Halsbur's Laws of England (Vol. I, 4th Ed., para 32) which is to the following.--
"32. Sub-delegation of powers.--In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub-delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind".
64. In the above view of the matter, it has to be held that the UGC has acted in excess of its powers in reserving the power in favour of persons other than itself under clause (e) of Regulation 3 for determination of fees and scale of fees payable by the students or conferring the same powers on the Committees constituted under Regulation 5 of the UGC Regulations. Anyhow, to mitigate the situation and to bring the MCI Regulations in conformity with the parent Act, we hold that the findings/views of the Committees or other authorities on the aspect of fees structure will be considered as recommendatory and the UGC can act upon the same for exercise of its powers under Section 12(2) of the UGC Act. Anyhow, it is advisable for the UGC to immediately proceed to amend its Regulations in the said lines.
65. To summarize, it is held that.--
(a) In the present statutory set up, it is only the University Grants Commission, which has the Parliamentary sanction, to specify the fees structure chargeable by the affiliated colleges and deemed Universities imparting any specialised course of study.
(b) The above power of specifying the scale of fees and related matters has to be exercised by the UGC itself since UGC Act has not permitted redelegation of the said power.
(c) The above power can be exercised by the UGC only after consultations with the Universities concerned is provided under Section 12-A(2) of the UGC Act and by following the consultative process evolved by the Supreme Court in Unnikrishnan's case, supra.
(d) The fees structure devised by the UGC can be enforced only through Regulations to be published in the Official Gazette.
(e) Keeping in view the time constraint and the procedural requirements, the UGC can prescribe provisional fees structure for the professional colleges for the academic year 2000-2001 before 1-6-2000 and can determine the same finally as soon as possible thereafter but before the end of current calender year with clear stipulation for adjustment of excess payments or the short-falls therein.
(f) It will be advisable if the relevant materials on the basis of which the UGC decides to fix the scale of fees relating to specified courses of study, is hosted on the internet to ensure transparency of the process.
(g) Since, the law on the subject was still in fluid state, therefore, we are not inclined to disturb the scale of fees which has been prescribed by the respective authorities for the academic year upto 1999-2000.
66. The writ petition is accordingly disposed of.
67. Let a copy of this order be made available to Mr. Shailendra Kumar, learned Counsel for UGC, for necessary action.