Punjab-Haryana High Court
The Self-Financed Colleges ... vs State Of Punjab And Others on 21 November, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Civil Writ Petition No.5493 of 2011 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: NOVEMBER 21, 2012
The Self-Financed Colleges Association, Punjab, Chandigarh
and others
.....Petitioners
VERSUS
State of Punjab and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Rajiv Atma Ram, Sr.Advocate with
Mr. Arjun Pratap Atma Ram, Advocate,
for the petitioners.
Ms. Monica Chhibber Sharma, DAG, Punjab,
for the State.
Mr. Amrit Paul, Advocate,
for respondent No.2.
Mr. Anshul Joy, Advocate,
for respondent No.4.
Mr. Vinod S. Bhardwaj, Advocate,
for respondent No.5.
*****
RANJIT SINGH, J.
Unaided Private Colleges conducting B.Ed.Courses in the State of Punjab statedly have formed an Association. Petitioner Nos.1 to 3 are Association of Colleges conducting B.Ed.Courses in the State of Punjab and have got themselves registered under the Civil Writ Petition No.5493 of 2011 (O&M) :2: Societies Registration Act. It is stated that all the Colleges are members of petitioner Nos.1 to 3 Association and are affiliated to the respondent-Universities. Petitioner No.4 is a Federation comprising of the Association-petitioner Nos.1 to 3 and is also registered under the Societies of Registration Act. The petitioners have filed this writ petition on behalf of all the unaided private colleges conducting B.Ed.courses to challenge the order passed by the respondents fixing the fee at `40,000/- per student per year on the ground that this is arbitrarily fixed and, hence, the present writ petition.
Though there is no objection raised by the respondents about the petitioners' right to invoke writ jurisdiction of this court in its representative capacity on behalf of all B.Ed.Colleges, yet there may be some doubts in this regard, but leaving this aspect aside, the challenge raised in the petition is being dealt with without going into this aspect of the issue.
The petitioners have challenged the orders (Annexures P- 2 and P-3) issued by Panjab University and Punjab Government, Higher Education, Department, respectively, fixing `40,000/- as a fee to be charged by Self-financed B.Ed.Colleges for session 2010-11. The session concededly is over and the issue, therefore, seems academic in nature. Yet the counsel has pressed hard his plea and, thus, it may call for adjudication.
Conduct of B.Ed.Course is governed by National Council for Teachers Education Act, 1993 (for short " NCTE Act"). In terms of the provisions of the NCTE Act, National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 Civil Writ Petition No.5493 of 2011 (O&M) :3: (for short "Regulations 2007") are framed. In exercise of powers under Section 12 and 32 of the Act, NCTE has framed Regulations called "National Council for Teacher Education (Guidelines for Regulation of Tuition Fee and other Fee chargeable by unaided Institutions) Regulations, 2002 (for short "Regulations 2002") As per the petitioners, in complete derogation of Regulations 2002, the respondents had determined `25,000/- per annum as a fee chargeable by B.Ed.Colleges for the years 2002 to 2005. For 2005-06, the fee was fixed at `32,500/- per annum and for session 2006-07, the fee was fixed at `35,000/- per annum.
On 20.5.2009, the petitioners submitted a representation. The State of Punjab issued notification for admission to B.Ed.Course session 2009-10. The petitioners filed another representation on 31.5.2009 attaching documentary proof of the break up of the expenditure being incurred by the colleges and the proposed fee. A similar representation was given to Registrar, Panjab University followed by a reminder on 20.6.2009. Yet another representation was given to State of Punjab on 7.9.2009 followed by various reminders on 10.4.2010, 12.5.2010 and 9.6.2010. The grievance now raised is that sum of `35,000/- per annum was fixed as a fee in the year 2006, but the Government has now permitted an increase only of `5,000/- for the session 2010-11. The break up as disclosed in Annexure P-3 in this regard is that tuition fee remains the same, i.e., `10,750/-. As per the petitioners, the colleges are unable to meet the expenses of their colleges. As per the petitioners, the tuition fee covers the staff salary, electricity and other expenses of maintenance of the college. Civil Writ Petition No.5493 of 2011 (O&M) :4: The fee earlier fixed at `35,000/- was for a period of three years, which has elapsed.
The admissions for these colleges were made pursuant to the order in CWP No.10091 of 2009 and 17300 students were admitted to B.Ed.Course.
The petitioner-Association claims to have constituted a committee of eminent persons, which after due deliberation, has found that fee for B.Ed.course should be `72,389/-. Appreciating that the fee, if so enhanced, would almost be double the amount earlier being charged, the Association decided to implement the recommendation in a phased manner. The decision was accordingly taken to charge an amount for `49, 000/- per annum per student for academic session 2010-11. This was brought to the notice of general public through advertisement and an intimation in this regard was also forwarded to the State.
Letters Patent Appeal was filed against the judgment passed in CWP No.10091 of 2009 and the same was admitted without any interim relief. The petitioner-Association sought a clarification regarding fixation of fee for session 2010-11 in the Self- financed Colleges on 7.12.2010. The petitioners sent reminder on 5.1.2011. It is stated that Government of Punjab has increased fee in the field of Technical and Medical Education by approximately by 35% compared to the earlier fee as fixed. Even the tuition fee structure of B.Tech/B, Architecture or B.Pharmacy Courses is `22,500/- for first semester and similar fee for the second semester, whereas the same has been revised by the Government to `60,000/- Civil Writ Petition No.5493 of 2011 (O&M) :5: per annum. The petitioner-Associations accordingly are before the court to challenge this action in fixing the fee at `40,000/-, which is stated to be arbitrary.
Respondents-Universities have filed separate replies. In the reply filed by respondent No.4-Punjabi University, it is stated that the Self-financed educational institutions are to operate as per law on no profit basis. The University being instrumentality of State has to keep the interest of the students in view. It is stated that the work of imparting education from ancient time is treated as a charitable activity and accordingly capitation fee and profit making activity in any form is prohibited. It is stated that a degree of State control over private unaided professional institutions would be available for the reason that the recognition/affiliation has to be granted by the State authorities or its instrumentalities which have a duty to ensure that the higher standards of education are maintained in all professional institutions. It is stated that education is State subject under Entry 25 of the Concurrent List.
The State has disclosed that fixation of fee by the State is a regulatory measure and it does not amount to any interference in the internal administration of the B.Ed.Colleges. As per the State, private unaided B.Ed.Colleges cannot be permitted to overcharge from the students. Reference is made to famous case of T.M.A.Pai Foundation Versus State of Karnataka, AIR 2003 SC 355=(2002) 8 SCC 481, which authorises the State to frame regulations for governing service conditions for teaching and other staff for whom the aid is to be provided by the State. In regard to unaided minority Civil Writ Petition No.5493 of 2011 (O&M) :6: educational institutions, such regulations framed have to ensure a check over unfair practices and for general welfare of teachers.
The Hon'ble Supreme Court in this case has observed that there could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to. The State accordingly would emphasis that it has the power to regulate the fee structure.
Even a comparative chart is given to show that the fee charged for B.Ed.in aided colleges is `40,000/-, which is the fee fixed for unaided colleges as well. It is further stated that colleges, who are members of the Self-Financed Colleges Association had given an undertaking in the form of an affidavit at the time of opening a new B.Ed.College that they will abide by the Government rules and instructions. The respondent-State accordingly would object to this action of filing the petition now by the Association on behalf of the colleges.
The State would also point out that the fee has been fixed after giving due opportunity to the petitioners as well as to the members, which expressed their viewpoint, but none of them availed this opportunity or attended the meeting held on 9.9.2010. On this count, it is alleged that the petitioners cannot approach this court through the present writ petition.
To justify the fixing of the fee at `40,000/- per annum, it is stated that a committee was constituted for determining the fee for B.Ed.course through a communication dated 6.11.2009. An opportunity was afforded to the associations, for which purpose a Civil Writ Petition No.5493 of 2011 (O&M) :7: meeting was held on 12.7.2010, but none appeared. Thus, it is stated that the fee has been fixed after affording due opportunity to the petitioners. The justification is also offered for enhancing the fee in other courses and it is stated that the same would not be comparable with the B.Ed.course with which the petitioners are concerned.
Guru Nanak Dev University (respondent No.2) and NCTE (respondent No.5) have also filed separate replies. As per the reply filed by respondent No.2, Regulations 2002 give a clear power for fixing the fee. In addition, it is submitted that the money spent on imparting education in these institutions is not high as claimed by the Education Colleges. It is stated that the majority of these colleges lack qualified Principal and adequate number of qualified teachers. It is also stated that majority of these colleges do not pay proper salaries in a proper scales to their staff. Reference is made to the cases of Unni Krishnan J.P. and others Versus State of Andhra Pradesh and others, AIR 1993 SC 2178=(1993) 1 SCC 645, which has prohibited commercialization of education and profit making. Only thing required to be seen is that it shall not come in the way of institutions in mobilizing resources for the replacement and upgradation of assets. Earning returns on investment may be permissible but it would be desirable that the development fee could provide for an element of partial capital cost recovery to the Management, but not a return on investment.
NCTE in its reply has made reference to the legal provisions and the fact that it has framed the Regulations, 2002. Regulation 6 of the said Regulations makes a provision for Civil Writ Petition No.5493 of 2011 (O&M) :8: constitution of a committee for fixation of fee payable by private unaided institutions. This also lays down a procedure which has to be adopted by the committee alongwith the criteria for determination/ fixation of fee. Said Regulations were amended by Regulations, 2010. Otherwise, it is stated that NCTE is the regulatory and controlling body in the field of teacher education and is competent to lay down guidelines and the norms. The NCTE otherwise has not filed any reply on merits except to the extent that complete control to recognition such courses is with NCTE as per the law laid down.
Counsel for the petitioners has first attacked the impugned order on the ground that no opportunity of hearing was afforded to the petitioner-association or the colleges. The counsel pleads that the fee as fixed is in derogation of the regulations framed by the NCTE, which cannot be permitted. It is stated that procedure prescribed in the regulations was not followed and even the parameters laid down in the regulations were not considered while fixing the fee arbitrarily. As per the petitioners, complete regulation was given go-bye.
The respondents ofcourse have denied the averments so made in the petition being incorrect and have referred to the preliminary objections/submissions made in its reply, where the complete procedure, which was followed, is disclosed. No rebuttal in the form of replication has been filed to contest the reply filed by the State that notices were issued to the petitioners and the colleges, but none had appeared to make any submission. Otherwise, nothing is pointed out specifically as to which part of the regulation was violated Civil Writ Petition No.5493 of 2011 (O&M) :9: while fixing the fee.
Incidentally, there is no challenge raised on the right of the State to fix the fee as such. Though reference is made to the cases of T.M.A.Pai Foundation's case (supra) and P.A.Inamdar and others Versus State of Maharashtra and others, (2005) 6 SCC 537 and Islamic Academy of Education and another Vs. State of Karnataka and others, AIR 2003 SC 3724=(2003) 6 SCC
697. It is urged that the fixation of fee was in violation of the law laid down in these cases.
Another aspect highlighted by the counsel is on the basis of averment made in para No.17 of the petition, where it is urged that total budget sanctioned for six Government B.Ed.Colleges is `6,05,65,000/-. It is accordingly urged that on average, the expenditure in one college is more than `1.00 crore per year. The intake capacity of Government B.Ed.Colleges is 100 students. It is accordingly urged that the Government is spending Rs.1.00 lac per student per year, whereas it is not allowing the private unaided colleges to charge even a sum of `49,000/-. As per the petitioners, this averment made in the petition has not been contested by the respondents, but the reply filed by the State would disclose that the contents of this para have been denied. It cannot be said that the averments made in this para, thus, are not contested.
The counsel has then urged that the committee constituted to fix the fee was not as per the regulations. Reference in this regard is made to Regulation 5, which provides for constitution of a committee for fixation of payable fee. Regulation 6 provides a Civil Writ Petition No.5493 of 2011 (O&M) : 10 : procedure to be adopted by the committee. Regulations 5 and 6 are reproduced here under:-
"5. Constitution of Committees for fixation of fees payable
(i) The fees in recognised institutions (other than those institutions offering a teacher education programme leading to a university degree) operating on "no grant-in-
aid"/"self-financing" basis shall be determined by a State Level Committee;
(ii) The State Level Committee which may be constituted in every State by the concerned Government shall consist of:
(a) Secretary in-charge of Teacher Education of the State Government-Chairman;
(b) Secretary to the Finance Department of the State Government or his Nominee-Member;
(c ) Representative of the Department dealing with physical education, if such a Department exists, to be nominated by the State Government-Member;
(d) Three experts, one each in Institutional Finance, Cost Accountancy and Economics to be nominated by the State Government-Member;
(e) Director in-charge of Teacher Education of the State Government-Member Secretary.
The concerned government may nominate any other official to serve on the Committee.
6. Procedure to be adopted by the Committee Civil Writ Petition No.5493 of 2011 (O&M) : 11 : (1) Secretarial assistance to the State Level Committee shall be given by the Directorate of the State Government which is entrusted with the concerned teacher education programme as per the rules of procedure of the State Government.
(2) The term of office of the Members of the State Level Committee constituted under Regulation 5(ii), other than the ex-officio Members, shall be three years. (3) The State Level Committee shall review the fee structure at an interval of three academic years. (4) (i) Subject to provisions of these regulations, the Committee is free to devise its own procedure. The procedure shall, however compulsorily include giving opportunity to the institutions concerned to furnish such material as they may consider relevant. The Committee shall also have power to call for such information and details as it may consider relevant for fixation of fees. To carry out its functions effectively, the Committee shall lay down a time bound `action-calendar' and `dead-lines' for compliance by the institutions concerned and for completing its tasks.
(5) The Committee may determine different rates or scales of fees for different classes of institutions, if a classification is justified on intelligible and objective criteria. In particular, the Committee shall be free to fix different rates for institutions located in tribal areas, rural Civil Writ Petition No.5493 of 2011 (O&M) : 12 : areas and urban areas.
(6) While determining the fee chargeable, it shall be the duty of the Committee to ensure that the fee does not become a source of profit or commercialization for the institutions concerned."
The constitution of the committee as per Regulation 5 was constituted under the Chairmanship of Chief Secretary, Government of Punjab and consisted of Principal Secretary Department of Finance, Principal Secretary, Department of Higher Education, Vice Chancellors of Guru Nanak Dev University, Punjabi University and Panjab University and DPI Colleges, Punjab. The State in its reply has not only rebutted the challenge to the constitution of the committee but has placed the deliberations and the constitution of the committee.
This committee, thus, apparently, was constituted keeping in view the Regulation 5 of the Regulations, 2002. The Secretary in- charge of the Technical Education and Secretary Finance Department were the members. Three Vice Chancellors could easily be taken as experts and the Director in-charge of Technical Education acted as a member Secretary. I am, thus, not prepared to accept the submissions made by the counsel that this committee, which had made the recommendation for fixing the fee, was not constituted as per Regulation 5.
The documents annexed with the reply clearly show that notice of the meeting was issued to Smt.Satinder Dhillon in his capacity as Chairman, Punjab Self- Financed College Education, Civil Writ Petition No.5493 of 2011 (O&M) : 13 : S.K.Sharma, Chairman of Punjab, Self-Financed Colleges and Shri Upinder Sharma so also to Shri Ashok Garg, who was Chairman, Punjab Self-Financed Colleges Education. The record also shows that no representative of the Association of the Self-financed Colleges participated in this meeting. It is, thus, recorded that they were not interested to discuss the issue. The petitioners, thus, cannot complain that they were not afforded any opportunity of hearing.
Perusal of the proceedings of the meeting held on 15.9.2010 would show that Principal Secretary, Higher Education made a mention to the filing of a writ petition No.10091 of 2009 before this court with a prayer that the Federation be authorised to conduct B.Ed.Entrance Test, which permission had been allowed on 1.7.2010. However, the court has ordered that self-financed B.Ed.colleges were neither to charge capitation fee nor to charge more fee from the students for B.Ed.course than the determined by the committee constituted for B.Ed.course. The Federation in this background had constituted a State Level Fee Fixation Committee under the Chairmanship of retired Justice of High Court and it had recommended an annual fee `72,389/- per student. The committee accordingly had fixed `49,000/- annual fee per student for session 2010-11.
Members present during the meeting discussed various items of the fee structure proposed by the Federation and the committee then unanimously decided that the annual fee for B.Ed.course in private self-financed B.Ed.colleges be enhanced from Civil Writ Petition No.5493 of 2011 (O&M) : 14 : `35,000/- to `40,000/- per student for session 2010-11. Committee had decided that this hike would be applicable in funds only and not in tuition fee.
The issue was properly discussed and a decision arrived at. The decision incidentally does not suffer from any procedural violation or jurisdictional error for which this court could validly interfere in the decision making process. The jurisdiction to fix fee not being in dispute in any manner, really would not call for any adjudication on the aspect of jurisdiction of this committee to fix the fee. In this context, reference made to the judgment of T.M.A.Pai Foundation's case (supra) or other such cases really appears out of context. In any case, there being no challenge to the Regulations which permit constitution of a committee and its right to fix fee, the question of quantum of fee as fixed may really not call for any adjudication in exercise of writ jurisdiction.
The ratio of law laid down in T.M.A.Pai Foundation's case (supra) was discussed in detail in the light of decision in the case of Islamic Academy of Education in CWP No.11223 of 2009 (Haryana Progressive Schools' Conference (Regd.) Versus The State of Haryana), decided on 27.4.2011. Though the main issue in this writ petition was in a different context under different enactment, but the aspects of the judgment which have been referred to may help us in understanding the issues, which arose and were considered in the context of right to fix fee in private unaided institutions.
This court in CWP No.11223 of 2009 discussed these Civil Writ Petition No.5493 of 2011 (O&M) : 15 : cases and held as under:-
"The Hon'ble Supreme Court in T.M.A.Pai's case (supra) also considered the power of the Government to regulate a private institution and if so to the extent it could be done. It was noted by the court that right to establish and administer education institution broadly comprises of right to admit students, to set up reasonable fee structure, to constitute a governing body, to appoint staff teaching and non-teaching and to take action if there is dereliction of any duty. After considering various aspects, the court ultimately held that right to establish an educational institution can be regulated but such regulatory measures must be to ensure maintenance of proper academic standards etc. Not only that, the court observed that fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be an unacceptable restriction. The relevant observations in this retard are as under:-
"54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal- admission by those in charge of management. The fixing Civil Writ Petition No.5493 of 2011 (O&M) : 16 : of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.
56.An educational institution is established for the purpose of imparting education of the type made available by the institution. Different courses of study are usually taught by teachers who have to be recruited as per qualifications that may be prescribed. It is no secret the better working conditions will attract better teachers. More amenities will ensure that better students seek admission to that institution. One cannot lose sight of the fact that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money. It has, therefore, to be left to the institution, if it chooses not to seek any aid from the Government, to determine the scale of fee that it can charge from the students. One also cannot lose sight of the fact that we live in a competitive world today, where professional education is in demand. We have been given to understand that a large number of professional and other institutions have been started by private parties who do not seek any governmental aid. In a sense, a prospective student has various options open to him/her where, therefore, normally economic Civil Writ Petition No.5493 of 2011 (O&M) : 17 : forces have a role to pay. The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government.
57. We, therefore, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition "charitable" , it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit inasmuch as education is essentially charitable in nature. There can, however, be reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution."
While interpreting para 56 of the judgment in T.M.A.Pai Foundation's case (supra), the Hon'ble Supreme Court in Islamic Academy of Education's case (supra), upheld the autonomy of private unaided professional colleges as regard to determination of his own free structure, but it was clarified that the private institution Civil Writ Petition No.5493 of 2011 (O&M) : 18 : has a right to fix its own fee structure, but no profiteering and capitation fee can be charged. Significantly, the Court has observed that there are some statute/regulations which govern the fixation of fee, but at the same time viewed that the court has not yet considered the validity of these statutes/regulations and accordingly issued directions to each State to set up committee headed by a retired High Court Judge to go into the fee structure.
Right to establish an institution is provided under Articles 19(1)(g) of the Constitution of India. Such a right is, however, subject to reasonable restriction which may be imposed as per the law laid down in T.M.A.Pai Foundation's and Islamic Academy of Education's cases (supra).
In the present case, there is a regulation provided for, which authorizes the Government to fix the fee structure of B.Ed.Colleges. The said Regulations are not under challenge in any manner nor their challenge is being considered in the present writ petition or any other writ petition. These Regulations are framed under the Act and has made a provision for constitution of a committee. The committee was constituted as per the requirements of the Regulations. The committee had issued notice to the petitioner-associations, but they choose not to appear or to represent their side. Thus, the procedure as prescribed is duly followed while fixing the fee. As per Regulation 6, the duty of the committee is to ensure that the fee does not become source of profit or commercialization. The petitioners when given a chance did not appear before the committee but had constituted their own fee Civil Writ Petition No.5493 of 2011 (O&M) : 19 : fixation committee without any authority and apparently in violation of the regulation. Except for raising objection to the constitution of the committee and that it did not afford opportunity of hearing to the petitioners, no other ground is raised to challenge the decision to fix the fee. Both these grounds of attack are factually not made out from the record. Once the petitioners are relying on these Regulations, 2002, they would concede the right of the respondent-State to fix the fee. No challenge is made to these regulations. The limited grounds raised to challenge the decision making process under the Regulations is found factually not made out. There is, thus, virtually no valid ground to challenge the decision or the decision making process. It is to be noticed that self-financed institutions are to operate as per law on no profit basis. The State has to have a degree of control over private unaided professional institutions. Fixation of fee is a regulatory measure and may be essential to check exploitation of innocent students and public at large. Such institutions can not be allowed to overcharge. This much control is called for to maintain standard of education and was held permissible even in the cases, like T.M.A.Pai Foundation, Islamic Academy of Education and P.A.Inamdar (supra). As already observed, there is no infirmity either in the decision making process or none is pointed out which would call for interference in exercise of writ jurisdiction. The judgments in the cases of T.M.A.Pai Foundation and Islamic Academy of Education (supra) etc. may not be relevant to consider the issue of fee fixation once these regulations framed by the competent authority covering the field and which are Civil Writ Petition No.5493 of 2011 (O&M) : 20 : not put to any challenge by the petitioners. There is, thus, no valid cause or ground made out to interfere in the fee which is fixed.
I am, therefore, not inclined to interfere in exercise of writ jurisdiction and would dismiss the petition.
The writ petition is accordingly dismissed.
November 21, 2012 ( RANJIT SINGH ) ramesh JUDGE